UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBtlARY 


3 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/casesonamericancOOevaniala 


t^an^i  Lawrence    lio^  A 

CASES 


ON 


AMERICAN  CONSTITUTIONAL  LAW 


EDITED  BY 


CARL'  ■■■eVANS;:6.0YT),''  Ph.D. 


CHICAGO: 

CALLAGHAN  &  COMPANY, 

PUBLISHERS, 

1898. 


T 

E  V I  r?  <i- 


to  Actbf  Co-r.sr 


Entered  according  to  Actbf  Cov.^ress,  in  the  year  1898, 
By  CAX,LAGHAN  &  COMPANY, 
In  the  Office  of  the  Lihrsifrnji  fi£^  Congress,  at  Washington,  D. 


I     »       I  • »  »  '     •    i^ 


Composition  by 

The  Brown-Cooper  Typesetting  Co. 

Chicago. 


i^qa 


—J 


^ 

^ 

^ 


PREFACE. 


In  making  this  collection  of  cases,  it  was  not  my  purpose  to  at- 
tempt to  rival  the  notable  collection  of  Professor  Thayer.  I  have 
had  the  more  modest  design  of  bringing  together  within  the  com- 
pass of  a  single  volume  a  sufficient  number  of  the  leading  decisions 
of  the  Supreme  Court  of  the  United  States  on  constitutional 
law  to  form  the  basis  of  a  course  in  that  subject.  The  so-called 
"case  system"  of  study  is  applied  to  almost  all  branches  of  the  Iqav, 
but  its  application  to  constitutional  law  has  been  retarded  by  the 
obvious  impraeticability  of  referring  a  X3kss  ip.pxe  original  reports 
and  by  the  want  of  a  suitablS  t^aae  bpoli  o>!  moderate  size.  It  is  to 
meet  such  requirements  that  th's  colkction  has?  been  formed. 

A  work  of  this  kirsd  is, necessarily  a  ccmT/T-om.ise  between  the  de- 
sirable and  the  attainable.  The  exigencies  of  space  have  compelled 
me  to  exclude  numerous  instructive  decisions  which  many  persons 
may  expect  to  find  and  which  I  would  have  been  glad  to  print.  For 
the  further  economy  of  space,  arguments  have  been  omitted 
and  the  notes  are  few.  It  seemed  that  the  pages  required  for  these 
features  could  be  more  profitably  devoted  to  decisions  which  must 
otherwise  be  excluded. 

As  to  the  text  of  the  cases,  all  the  decisions  from  December 
Term,  1855,  (18  Howard),  have  been  taken  from  the  official  reports. 
Cases  decided  before  18  Howard  are  taken  from  Curtis'  Decisions 
of  the  Supreme  Court  of  the  United  States.  The  cases  are  re- 
printed verbatim  et  literatim  except  that  certain  parts,  particularly 
statements  of  facts,  have  been  shortened,  and  matter  not  necessary 

iii 


iV  PREFACE. 

to  the  elucidation  of  the  constitutional  question  involved  has  been 
omitted.    These  changes  have  been  indicated  in  the  usual  manner. 

The  date  -which  has  been  assigned  to  each  decision  is,  as  a  rule, 
the  year  in  which  the  term  began  at  which  the  decision  was  made. 
This  applies  to  all  the  cases  decided  prior  to  October  Term,  1882, 
(108  U.  S.),  except  the  Dred  Scott  case,  the  Prize  Cases,  Hepburn 
V.  Griswold,  and  the  Legal  Tender  Cases.  The  relation  of  these 
decisions  to  contemporary  affairs  made  their  exact  date  important. 
It  is  to  be  regretted  that  the  Keports  of  the  Supreme  Court  prior 
to  1882  do  not  indicate  the  day  on  which  each  decision  was 
rendered. 

Professor  Thayer  has  greatly  facilitated  my  work  by  permitting 
me  to  use  the  sheets  of  his  Cases  as  manuscript  for  the  printer.  It 
is  also  due  to  him  to  say  that  I  was  familiar  with  his  comprehensive 
collection  long  before  I  began  making  this  one.  How  far  this 
fact  may  have  influenced  my  selection  of  cases  and  my  method  of 
treating  them  cannot  be  determined.  A  general  acknowledgment 
of  indebtedness  must  therefore  suffice.  In  this  connection,  I 
would  also  express  my  oWf^aJ^ions  for  the  many  helpful  suggestions 
which  I  have  rectpved.frbm'.Heat?  Professor  Judson  and  Dr.  Ernst 
Freund 


Chicago,  April 


•.'..."*'•'*.  '/  ;  .' '  .t;ARL  EVANS  BOYD. 

ii  35,.:t/a8t  ..';•  ***/.vyV  .- 


TABLE  OF  CONTENTS. 


I.  THE  VALIDITY  OF  LEGISLATION— 

Marbury  v.   Madison 17 

II.  TAXATION— 

Hylton  V.  United  States 2G 

McCuIloch  V.  Maryland 32 

Weston  V.   Charleston 41 

License  Tax   Cases 45 

Crandall   v.   Nevada. : 49 

Veazie   Bank  v.   Fenno 5i) 

The^Collectgr  y.  Day! 61 

State  Tonnage  Tax  Cases 60 

Loan  Association  v.    Topeka 78 

Springer  "v.  TJhited  States 85 

Pollock  V.  Farmers'  Loan  and  Trust  Co 91 

III.  MONEY— 

Craig   V.    Missouri 101 

Briscoe  v.  Bank  of  Kentucky lOS 

Hepburn  v.  Griswold IIS 

LegalJUender  Cases 138 

Juilliard  y,  Greenmau 157 

IV.  COMMERCE— 

Gibbona-y.  Ogden 172 

Brown   V.   Maryland 192 

License  Cases    204 

Passenger  Cases   219 

Coojey  V.  Wardens  of  the  Port 235 

Case  of  the  State  Freight  Tax 246 

Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co..  255 

Gloucester  Ferry  Co.  v.  Pennsylvania 259 

Leisy  v.  Hardin 2!>9 

Minnesota  v.    Barber 231 

V.  THE  POLICE  POWER— 

Munn   V.    Illinois 289 

Escanaba  Co.  v^Chicago 299 


VI.     GENERAL    (IMPLIED)   POWERS— 

McCulloch  V.  Maryland 308 

V 


vi  TABLE  OF  CONTENTS. 

VII.  EXECUTIVE  powers- 

Ex  parte  Garlar  a 324 

In  re   Neagle 3Z5 

VIII.  WAR.— MARTIAL  LAW— 

Martin  v.  Mott 338 

The   Prize   Cases 342 

Ex  parte  Milligan 351 

IX.  EX  POST  FACTO    LAWS  AND  BILLS  OF  ATTAINDER— 

CaMei^-*--Bull 372 

Cummings   v.   Missouri 381 


X.     IMPAIRMENT  OF  CONTRACTS— 

Fletchor  v.   Peck 395 

Sturges  V.  Crowninshield 405 

Tjprtmniith  College  V.   Woodward 412 

Ogden  V.   Saunders 431 

Charles  Rivex-JBridge  x  Warren  Bridge 451 

XL     CIVIL  AND  POLITICAL  RIGHTS— 

Barron   v.   Baltimore 467 

Scott   V.   Sandford 471 

Slaughter  House .  Cases 491 

Straudsr  v.  West  Virginia 511 

Civil   Rights   Cases 518 

Hurtado  v.   California 534 

United  States   v.    Kagama 543 

XII.  THE  FEDERAL  GOVERNMENT  AND  THE  STATES— 

Texas   v.   White. 552 

Tarble's   Case    563 

Ex  parte  Siebold 571 

XIII.  INTERNATIONAL  RELATIONS.— INDIAN  AFFAIRS— 

American  Insurance  Co.  v.  Canter 583 

ChgEOkee  Nation  v.  Georgia 584 

Worcester   v.    Georgia 590 

Fong  Yue  Ting  v.  United  States 595 

XIV.  JURISDICTION  OF  THE  FEDERAL  COURTS— 

Chisholm   v.    Georgia , 603 

Martin  v.   Hunter's   Lessee 616 

Cohens  v.  Virginia 627 

United  States  v.  Texas 637 

XV.  POLITICAL  QUESTIONS— 

Luther   v.    Bcrden 647 

Mississippi  v.  Andrew  Johnson 652 

XVI.  ENFORCEMENT    OF    EXECUTIVE    POWER    BY    JUDICIAL 
PROCESS— 

Inrejiebs 659 


TABLE  OF  CASES. 


Ableman  v.  Booth 565,  568 

Alabama  v.  Georgia 640 

Aldnutt  V.   Inglis 292 

Alexander  v.  Railroad 71,  75 

Allen  V.  Inhabitants  of  Jay 81 

Almy  V.  California 253 

American  Ins.  Co.  v.  Canter. . 

547,  583 

Amy  Warwick,  The 342 

Apsden  v.  Austin 151 

Assignees  of  Topham  v.  Chap- 
man      446 

Austria  v.  Day 168 


Baker  v.  Wheaton 

Ballantine  v.  Golding 

Bank  v.  Supervisors 

of  Columbia  v.  Okely 

of  Commerce  v.  New  York 
City    

of  Kentucky  v.  Wistar 

of  U.  S.  V.  Planters'  Bank. 

Banks  v.  Mayor 

Bank  Tax  Case 

Barbier  v.   Connolly 

Barrington  v.  Potter 

Barron  v.  Baltimore 

Bartemeyer  v.   Iowa 

Bayard   v.  Singleton 

Beaty  v.  Lessee  of  Knowles... 

Beer  Co.  v.  Massachusetts 

Benedict  v.   Vanderbilt 

Bolt  V.  Stennett 

Bonham's  Case 

Bowman  v.  C.  &  N.  W.  Rail- 
way Co 273,  276, 

Bowman  v.  Middleton 

Boyle  V.  Reading  R.  R.  Co 

Brilliante,  The 


Briscoe  v.  Bank  of  Kentucky. 

108,   155,  169 

Bronson  v.  Rodes 120,  122 

Brown  v.  Houston 271,  278 

V.  Levee  Commissioners..  542 

V.  Piper 283 

V.  Maryland  ....54,  76,  192, 
206,  208,   210,   220,  270, 

272,  273,  279 

V.  United  States 31V 

Burrows  v.  Jamineau 447 

Butler  V.  Horwitz 120 


446     Calder  v.  Bull 372 

445     Camden  v.  Allen 84 

166  Chae    Chan    Ping    v.    United 

537  States  596,  601 

Charles  River  Bridge  v.  War- 

247  ren  Bridge  451 

117  Cherokee    Nation    v.    Georgia 

117  547,  549,  584,  638,  639 

166     Chirac  v.  Chirac 217 

247  Chisholm  v.  Georgia 603 

307  City    of    New    York    v.    Miln 

151  216,  220,  224,  495 

467     Civil  Rights  Cases 518 

278  Clarke  v.  P.  W.  &  B.  R.  R.  Co.  249 

24     Coffin  v.   Landis 151 

459     Cohens  v.  Virginia 139,239, 

278  356,  595,  627,  642 
75     Collector  v.  Day 64 

292     Commonwealth  v.  Alger 494 

539  v.  Caton  24 

V.  Smith  137 

279  Cook  V.  Pennsylvania 277 

24  Cooley   v.   Board   of  Wardens 

248  52,  75,  235,  252,  271,  307,  572 
342     Corfield  v.  Coryell 505 

vii 


viii 


TABLE    OF    CASES. 


Craig  V.  Missouri; 101,  110, 

116,  164,  169 
Crandall  v.  Nevada. ..  .49,  252, 

253,  507 

Crensliaw,  Tlie   342 

Cumberland  Valley  R.  R.  Co.'s 

Appeal     248 

Cummings  v.  Missouri 381 

Daniel  Ball,  The 302 

Dartmouth   College   v.    Wood- 
ward    412 

Davidson  v.  New  Orleans 540 

Dobbins  v.  Brown 152 

V.  Commissioners  of  Erie 

County 64,  65,  67 

Dooley  v.  Smith 160 

Dred  ScoLt  v.  Sandford 471,  503 

Dunn  V.  Sayles 151 

Eakin  V.  Raub 24 

Edye  v.  Robertson 600 

Eilenbaker  v.  District  Court  of 

Plymouth  County 278 

Escanaba  Co.  v.  Chicago.  .277,  299 

Ex  parte  Bollman 354 

Crow    Dog 549 

Garland   324,  394 

Milligan    351 

Siebold   331,  571,  661 

Virginia  522,  525 

Watkins    354 

Yarbrough   600 

Faw  V.  Marsteller 151 

Fellows  V.  Blacksmith  et  al...  551 

Fisher  v.  Blight 143 

Fletcher  v.  Peck..  138,  386,  389,  395 

V.  Rhode  Island 204 

Florida  v.  Georgia 640 

Fong  Yue  Ting  v.  U.  S 595 

Foster  v.  Davenport 72 

v.   Kansas    278 

v.  Neilson 600,  638,  658 

Fowler  v.  Lindsey 645 

Fox  V.  Ohio 575 


Gaines  v.  Buford 388 

Garcia  v.  Lee 638,  639 

Gelston  v.  Hoyt 657 

Georgia  v.  Stanton 658 

Gibbons  v.  Ogden. .  .72,  93,  153, 
172,  201,  213,  216,  217, 
220,  222,  226,  232,  252, 
255,  265,  267;  270,  273, 
274,  280,  495,  665. 

Gilman  v.  Philadelphia 252, 

303,  664,  665 
Gloucester  Ferry  Co.  v.  Penn- 
sylvania      259 

Groves  v.  Slaughter 227 

Hanson  v.  Vernon 81,  82,  84 

Hans  V.  Louisiana 643,  644 

Harrison  v.  Sterry 446 

Hays  V.  Pacific  Mail  Steamship 

Co 263,  265 

Henderson  v.  Mayor  of  New 
York.... 265,    270,    277, 

282,  304 
Hepburn  v.  Griswold.  .118,  144, 

155,  160,  166 

&  Dundas  v.  Ellzey 561 

Hiawatha,  The 343 

Holmes  v.  Jennison 220,  356 

V.    Walton ' 24 

Houston  V.  Moore 217,  220,  233 

Hawell  V.  Maryland 71. 

Hunt  V.  Knickerbocker 107 

Hunter  v.  Potts 445 

Hurtado  v.  California 534 

Hyde  v.  Continental  Trust  Co.    91 

Hylton  v.  United  States 26, 

61,  87,  89,  90,   93 

Indiana  v.  Kentucky 640 

In  re  Adam '. 602 

Debs   659 

Neagle     325 

Rapier     600 

Jackson  v.  Lamphire 459 

Jenkins  v.  Andover 83 

Jones  V.  Robbing 535 

V.  United  States. 658 


TABLE    OF    CASES. 


ix 


Juilliard   v.  Greenman 157, 

323,  600 

Kalloch  V.  Superior  Court 535 

Kansas  Indians,  The 551 

Kellogg  V.  Union  Co 266 

Kendall  v.  Stockton  &  Stokes.  655 

Kennard  v.  Louisiana 540 

Kentucky  v.  Dennison 576 

Kidd  V.  Pearson 278 

Kimmish   v.   Ball 278 

Knox  V.  Lee 136,  156,  323,  597 

Lane  County  v.  Oregon 65, 

120,  555,  661 
Lau  Ow  Bew  v.  United  States.  602 

Lee  Joe  v.  United  States 595 

Legal  Tender  Cases...  136,  160, 

166,  169,  170,  597 

Leisy  v.  Hardin 269,  807 

License  Cases 204,  275,  276, 

279,  307 

License  Tax  Cases 45,  307,  495 

Loan  Association  v.  Topeka78,  542 

Logan  V.  United  States 600 

Lowell  V.  Boston 81 

Luther  V.  Borden 369,  559,  647 

Marbury  v.  Madison ..  17,   654,  655 
Martin  v.  Hunter's  Lessee.  138, 

239,  616 

V.  Mott 338,  650 

Maryland  v.  Railroad  Co 160 

Matter  of  Keeler 569 

Mayor  of  New  York 84 

Severy  569 

Turner    500 

McConnell  v.  Hampden 369 

McCulloch  V.  Maryland 32, 

42,  45,  54,  64,  68,  76,  84, 
92,  126,  138,  143,  146, 
161,  163,  166,  171,  228, 
263,  308,  496,  600,  644, 
66L 

M'Millan  v.  M'Neil 432 

McReynolds  v.  Smallhouse 266 

Minnesota  v.  Barber 281,  307 

Mississippi  v.  Johnson 652 


Missouri  v.  Iowa 640 

V.   Kentucky 640 

V.  Lewis   541 

Mobile  V.  Kimball 261,  271, 

277,  301 

V.  Yuille 293 

Moore  v.  Illinois 575 

Morgan  Steamship  Co.  v.  La. 

Board  of  Health 278 

Morgan  v.  Parham 263,  265 

Mugler  V.  Kansas 278,  282,  307 

Munn  V.  Illinois 289,  540 

Murphy  v.  Ramsey   547 

Murray's   Lessee    v.    Hoboken 

Land  &  Imp.  Co 537 

Nashville,  &c.  Railway  Co.  v. 

Alabama  278 

Nathan  v.  Louisiana 71,  76 

National  Bank  v.  United  States  167 

Nebraska  v.  Iowa 640 

New  Jersey  v.  New  York 640 

New  Jersey  Navigation  Co.  v. 

Merchants'    Bank 293 

New  York  Indians,  The 551 

Nishimura     Ekiu     v.     United 

States 596,  600 

Norris  v.  Boston 219,  230,  231 

North  Carolina  v.  Temple 643 

Northern  Liberties  v.  St.  John's 

Church    84 

Ogden  V.  Saunders 431 

Olcott  V.  Supervisors 83 

Osborn  v.  United  States  Bank  166 

Pacific  Ins.  Co.  v.  Soule 61, 

89,  90 

Packet  Co.  v.  Catlettsburg 269 

V.  Keokuk 268 

V.   St.    Louis 269 

Palmer   v.    Commissioners    of 

Cuyahoga    Co 306 

Parker  v.  Davis 136 

Parsons  v.  United  States 337 

Passenger  Cases,  The... 51,  52, 

54,  72,  219,  250,  252 

Patterson  v.  Kentucky 278,  286 

Patton  v.  Nicholson 107 


TABLE    OF    CASES. 


Paul  V.  Virginia 261,  506 

Pearson  v.   International  Dis- 
tillery      279 

Peirce  v.  New  Hampshire.  .204,  276 
Pennsylvania  v.  Standard  Oil 

Co 263 

Pensacola    Telegraph    Co.    v. 
Western     Union     Tel. 

Co 255 

People  V.  Compagnie  G6n§rale 

Transatlantique    282 

V.    Salem 83 

Permoli  v.  First  Municipality.  305 

Perry  v.  Torrence 72 

Phillips  V.  Detroit 283 

V.    Hunter 446 

Poindexter  v.  Greenhow 98 

Pollard's  Lessee  v.  Hagan 305 

Pollock   V.   Farmers'    Loan   & 

Trust  Co 91 

Pound  V.  Turck 303 

Pray  v.  Northern  Liberties...     84 

Prigg  V.  Pennsylvania 239,  517 

Prize  Cases,  The 342 

Providence  Bank  v.  Billings  & 

Pittman    459 

Provident  Bank  v.  Massachu- 
setts     247 

Railroad  Co.  v.  Husen 270,  277 

V.    Johnson 160 

v.  Pennsylvania 263 

Reading  Railroad  Co.  v.  Penn- 
sylvania   246,  265 

Rhode  Island  v.  Massachusetts 

640,  645 
Robbins  v.  Shelby  Taxing  Dis- 
trict  270,  271,  277,  286 

Robinson  v.  Memphis  &  Char- 
leston R.  R.  Co... 518, 

519,  533 

Rowan  v.  The  State 535 

Rutgers  v.  Waddington 24 

Santissima  Trinidad,  The 346 

Satterlee  v.  Matthewson 454 

St.  Louis  V.  The  Ferry  Co 263 

Scholey  v.  Rew 89,  90 

Searight  V.  Calbraith 170 


Sennot  v.  Davenport 72 

Sharpless  v.  Mayor  of  Phila- 
delphia  81,  82,  84 

Slaughter-House  Cases ....  307, 

491,  513,  516 

Smith  V.  Alabama 278 

V.    Shaw 369 

V.  Turner 219,  231 

Society  fcr  Saving  v.  Coite.76,  247 

Soon  Hing  v.  Crowley 282 

Spraigue  v.  Thompson   98 

Springer  v.  United  States 85 

Springfield  Bank  v.  Merrick..  107 
State  Freight  Tax  Case... 246, 

277,  286 
State    Tax   on  Railway   Gross 

Receipts    298 

State  Tonnage  Tax  Cases €9 

State  V.  Charleston 75 

V.   Starling 533 

V.  Wapello  Co 82 

Steamship  Co.  v.  Port  Ward- 

er.s 74,  265 

Stourbridge  Canal  v.  Wheeling  457 

Strader  v.  Graham 483,  484,  486 

Strauder  v.  West  Virginia 511 

Stuart  V.  Laird 239 

Sturges  V.  Crowninshield.  .164, 
217,  220,  243,  405,  432, 
434,  439,  444 


Tarble's  Case  563 

Tennessee  v.  Davis 331,  517 

Texas  v.  White 156,  552 

Thames  Bank  v.  Lovell 266 

Thorpe  v.  Rutland  &  Burling 

ton  R.  R.  Co 290,  495 

Thurlow  V.  Massachusetts 204 

Towboat  Co.  v.  Bordelon 75 

Transportation  Co.  v.  Parkers- 
burg  269,  278 

Trevett  v.  Weeden 24 

Turner  v.  Maryland 274 


United  States  v.  Arredondo... 

459,  638,  639 
v.  Bell    Telephone    Co 664 


TABLE    OF    CASES. 


XI 


United  States  v.  Booth 565,  568 

V.  Cruikshank 522,  576 

V.  Daniel   355 

V.  DeWitt 495 

V.  Fisher  162 

V.  Harris    527 

V.  Holliday  657 

V.  Hughes   335 

V.  Kagama 543 

V.  Marigold 142,  148,  575 

V.  Nichols 518,  519 

V.  North  Carolina 642 

V.  Reese  517 

V.  Rogers  547 

V.  Ryan .518,  519,  533 

V.  San  Jacinto  Tin  Co. 334,  664 

V.  Singleton 518,  519 

V.  Stanley 518,  519 

V.  Texas  637 

Bank  v.  Dank  of  Georgia.  166 

Vanderbilt  v.   Adams 266 

Vanderheyden  v.  Young 341 

Veazie   Bank   v.    Fenno 58, 

68,  89,  147,  166,  167 

Vicksburg  v.  Tobin 269 

Virginia  v.  Rives 522 

V.  West  Virginia 640 


Wabash,  St.   Louis,  &c.,  Rail- 
way V.  Illinois 271,  277 

Walker  v.  Savinet 540 

Walling  V.  Michigan.  .270,  278,  285 

Ward  V.  Maryland 505 

V.  Smith  166 

Warren  v.  Charlestown 98 

Watson  V.  Bourne 443 

V.  Mercer  455 

Webber  v.  Virginia 278 

Wells  V.  Nickles 334 

Welton  V.  Missouri... 261,  278,  304 

Westervelt  v.  Gregg.' 536 

Weston  V.  Charleston. .  .41,  54, 

64,  76,  166,  350 
Whiting  V.  Fond  du  Lac... 81, 

82,  83,  84 

Whitney  v.  Robertson 601 

Williams  v.  Suffolk  Ins.  Co. . . .  658 
Willson    V.    Blackbird    Creek 

Marsh  Co 216,  217, 

220,  239,  iJ03 

Winney  v.  Whitesides 488 

Wisconsin  v.  Pelican  Ins.  Co. 

640,  643 
Wong  Quan  v.  United  States..  595 

Woodruf  V.  Parham 253 

Worcester  v.  Georgia.  .549,  551,  590 
Workman  v.  Mifflin 152 


O^S.SE>S 


o» 


AMERICAN  CONSTITUTIONAL  LAW, 


THE  CONSTITUTION  OF  THE  UNITED  STATES. 


^  We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defense,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 

AETICLE  I. 

SECTION  I. 

*  All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  t;he  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

SECTION  n. 

'  The  House  of  Representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  States, 
and  the  electors  in  each  State  shall  have  the  qualifications  requi- 
site for  electors  of  the  most  numerous  branch  of  the  State  legis- 
lature. 

*  No  person  shall  be  a  Representative  who  shall  not  have  at- 
tained the  age  of  twenty-five  years,  and  been  seven  years  a  citizen 
of  the  United  States,  and  who  shall  not,  when  elected,  be  an 
inhabitant  of  that  State  in  which  he  shall  be  chosen. 

^  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  numbers,  which  shall  be  determined 
by  adding  to  the  whole  number  of  free  persons,  including  those 
bound  to  service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.    The  actual  enumeration 

1 


2  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

shall  be  made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  subsequent  term 
of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  Representatives  shall  not  exceed  one  for  every  thirty 
thousand,  but  each  State  shall  have  at  least  one  Representative; 
and  until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  choose  three,  Massachusetts  eight, 
Rhode  Island  and  Providence  Plantations  one,  Connecticut  five. 
New  York  six.  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten.  North  Carolina  five,  South  Caro- 
lina five,  and  Georgia  three. 

^  When  vacancies  happen  in  the  representation  from  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill 
such  vacancies. 

■^  The  House  of  Representatives  shall  choose  their  Speaker  and 
other  officers,  and  shall  have  the  sole  power  of  impeachment. 

SECTION  III. 

^  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  legislature  thereof,  for 
six  years;  and  each  Senator  shall  have  one  vote. 

*  Immediately  after  they  shall  be  assembled  in  consequence 
of  the  first  election,  they  shall  be  divided  as  equally  as  may  be 
into  three  classes.  The  seats  of  the  Senators  of  the  first  class 
shall  be  vacated  at  the  expiration  of  the  second  year;  of  the  second 
class,  at  the  expiration  of  the  fourth  year,  and  of  the  third  class, 
at  the  expiration  of  the  sixth  year,  so  that  one-third  may  be  chosen 
every  second  year;  and  if  vacancies  happen  by  resignation  or 
otherwise  during  the  recess  of  the  legislature  of  any  State,  the 
executive  thereof  may  make  temporary  appointments  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  vacancies. 

^"  No  person  shall  be  a  Senator  who  shall  not  have  attained 
to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  StateSj^  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

^^  The  Vice-President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  vote,  unless  they  be  equally 
divided. 

^^  The  Senate  shall  choose  their  other  officers,  and  also  a  Presi- 
dent pro  tempore  in  the  absence  of  the  Vice-President,  or  when 
he  shall  exercise  the  office  of  President  of  the  United  States. 

^'  The  Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirma- 
tion. When  the  President  of  the  United  States  is  tried,  the  Chief 
Justice  shall  preside:  and  no  person  shall  be  convicted  without 
the  concurrence  of  two-thirds  of  the  members  present. 

**  Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and  enjoy 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  3 

any  office  of  honor,  trust,  or  profit  under  the  United  States;  but 
the  party  convicted  shall,  nevertheless,  be  liable  and  subject  to 
indictment,  trial,  judgment,  and  punishment  according  to  law. 

SECTION  IV. 

^°  The  times,  places,  and  manner  of  holding  elections  for  Sen- 
ators and  Representatives  shall  be  prescribed  in  each  State  by 
the  legislature  thereof;  but  the  Congress  may  at  any  time  by  law 
make  or  alter  such  regulations,  except  as  to  the  places  of  choosing 
Senators. 

^®  The  Congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day. 

SECTION  V. 

"  Each  house  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members,  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number  may 
adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such  manner,  and  under  such 
penalties,  as  each  house  may  provide. 

^*  Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and  with  the  concurrence  of 
two-thirds,  expel  a  member. 

^®  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in 
their  judgment  require  secrecy,  and  the  yea^  and  nays  of  the  mem- 
bers of  either  house  on  any  question  shall,  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journal. 

^"  Neither  house,  during  the  session  of  Congress,  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  houses  shall  be 
sitting. 

SECTION  VI. 

^^The  Senators  and  Eepresentatives  shall  receive  a  compensa- 
tion for  their  services,  to  be  ascertained  by  law  and  paid  out  of 
the  Treasury  of  the  United  States.  They  shall,  in  all  cases  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their  respective  houses, 
and  in  going  to  and  returning  from  the  same;  and  for  any  speech 
or  debate  in  either  house  they  shall  not  be  questioned  in  any  other 
place. 

^^  No  Senator  or  Representative  shall,  during  the  time  for  which 
he  M-as  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased  during  such  time;  and 


i  THE  CONSTITUTION  OF   THE  UNITED  STATES. 

no  person  holding  any  office  under  the  United  States  shall  be  a 
member  of  either  house  during  his  continuance  in  office. 

SECTION  VII. 

^^  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Kepresentatives;  but  the  Senate  may  propose  or  concur  with 
amendments  as  on  other  bills. 

2*  Every  bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate  shall,  before  it  becomes  a  law,  be  presented 
to  the  President  of  the  United  States;  if  he  approve  he  shall  sign 
it,  but  if  not  he  shall  return  it,  with  his  objections,  to  that  house 
in  which  it  shall  have  originated,  who  shall  enter  the  objections 
at  large  on  their  journal  and  proceed  to  reconsider  it.  If  after 
such  reconsideration  two-thirds  of  that  house  shall  agree  to  pass 
the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two-thirds  of  that  house  it  shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and  against  the 
bill  shall  be  entered  on  the  journal  of  each  house  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  Congress  by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law. 

*^  Every  order,  resolution,  or  vote  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary  (except 
on  a  question  of  adjournment)  shall  be  presented  to  the  President 
of  the  United  States;  and  before  the  same  shall  take  effect,  shall 
be  approved  by  him,  or  being  disapproved  by  him,  shall  be  repassed 
by  two-thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

SECTION  VIII. 

2"  The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties, 
fmposts,  and  excises,  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States;  but  all  duties, 
imposts,  and  excises  shall  be  uniform  throughout  the  United 
States; 

^^  To  borrow  money  on  the  credit  of  the  United  States; 

^^  To  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  tribes; 

^'  To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States; 

^^"  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures; 

^^  To  provide  for  the  punishment  of  counterfeiting  the  securi- 
ties and  current  coin  of  the  United  States; 


K 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  6 

^^  To  establish  post-offices  and  post-roads; 

^'  To  promote  the  progress  of  science  and  useful  arts  by  secur- 
ing for  limited  times  to  authors  and  inventors  the  exclusive  right 
to  their  respective  writings  and  discoveries; 

^*  To  constitute  tribunals  inferior  to  the  Supreme  Court; 

^°  To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas  and  offenses  against  the  law  of  nations; 

^®  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water; 

^^  To  raise  and  support  armies,  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  time  than  two  years; 

^*  To  provide  and  maintain  a  navy; 

^®  To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces; 

*"  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections,  and  repel  invasions; 

*^  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States  respect- 
ively the  appointment  of  the  officers,  and  the  authority  of  train- 
ing the  militia  according  to  the  discipline  prescribed  by  Con- 
gress; 

*^  To  exercise  exclusive  legislation  in  all  cases  whatsoever  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  States  and  the  acceptance  of  Congress,  become  the 
seat  of  the  Government  of  the  United  States,  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of  the  legis- 
lature of  the  State  in  which  the  same  shall  be,  for  the  erection 
of  forts,  magazines,  arsenals,  dockyards,  and  other  needful  build- 
ings; and 

*^  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the  United 
States,  or  in  any  department  or  officer  thereof. 

SECTION  IX. 

**  The  migration  or  importation  of  such  persons  as  any  of  the 
States  now  existing  shall  think  proper  to  admit  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight,  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person. 

*"*  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it. 

*^  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

*''  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore  directed  to 
be  taken. 


X 


6  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

*®  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State. 

**  No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  State  over  those  of  another;  nor 
shall  vessels  bound  to  or  from  one  State  be  obliged  to  enter,  clear, 
or  pay  duties  in  another. 

^"  No  money  shall  be  drawn  from  the  Treasury  but  in  conse- 
quence of  appropriations  made  by  law;  and  a  regular  statement 
and  account  of  the  receipts  and  expenditures  of  all  public  money 
shall  be  published  from  time  to  time. 

®^  No  title  of  nobility  shall  be  granted  by  the  United  States; 
and  no  person  holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  Congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  State. 

SECTION  X. 

"No  State  shall  enter  into  any  treaty,  alliance,  or  confedera- 
tion; grant  letters  of  marque  and  reprisal;  coin  money;  emit 
bills  of  credit;  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts;  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts,  or  grant  any  title 
of  nobility. 

^^  No  State  shall,  without  the  consent  of  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws;  and  the  net 
produce  of  all  duties  and  imposts,  laid  by  any  State  on  imports  or 
exports,  shall  be  for  the  use  of  the  Treasury  of  the  United  States; 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of  the 
Congress. 

'*  No  State,  shall,  without  the  consent  of  Congress,  lay  any 
duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with  another  State  or  with 
a  foreign  power,  or  engage  in  war,  unless  actually  invaded  or  in 
such  imminent  danger  as  will  not  admit  of  delay. 

ARTICLE   II. 
SECTION  I. 

""^  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office  during  the 
term  of  four  years,  and  together  with  the  Vice-President,  chosen 
for  the  same  term,  be  elected  as  follows: 

°"  Each  State  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors,  equal  to  the  whole 
number  of  Senators  and  Representatives  to  which  the  State  may 
be  entitled  in  the  Congress;  but  no  Senator  or  Representative,  or 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  7 

person  holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector. 

"  [The  electors  shall  meet  in  their  respective  States  and  vote 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each;  which  list  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  seat  of  government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  President  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  electors  ap- 
pointed; and  if  there  be  more  than  one  who  have  such  majority, 
and  have  an  equal  number  of  votes,  then  the  House  of  Kepre- 
sentatives  shall  immediately  choose  by  ballot  one  of  them  for 
President;  and  if  no  person  have  a  majority,  then  from  the  five 
highest  on  the  list  the  said  House  shall  in  like  manner  choose  the 
President.  But  in  choosing  the  President  the  votes  shall  be  taken 
by  States,  the  representation  from  each  State  having  one  vote; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority  of  all  the  States 
shall  be  necessary  to  a  choice.  In  every  case,  after  the  choice  of 
the  President,  the  person  having  the  greatest  number  of  votes  of 
the  electors  shall  be  the  Vice-President.  But  if  there  should  remain 
two  or  more  who  have  equal  votes,  the  Senate  shall  choose  from 
them  by  ballot  the  Vice-President.]^ 

°*  The  Congress  may  determine  the  time  of  choosing  the  elect- 
ors and  the  day  on  which  they  shall  give  their  votes,  which  day 
shall  be  the  same  throughout  the  United  States. 

^*  No  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President;  neither  shall  any  person 
be  eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

*"  In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice-Presi- 
dent, and  the  Congress  may  by  law  provide  for  the  case  of  re- 
moval, death,  resignation,  or  inability,  both  of  the  President  and 
Vice-President,  declaring  what  officer  shall  then  act  as  President, 
and  such  officer  shall  act  accordingly  until  the  disability  be  re- 
moved or  a  President  shall  be  elected. 

'^  The  President  shall,  at  stated  times,  receive  for  his  services 
a  compensation,  which  shall  neither  be  increased  nor  diminished 

1  This  clause  of  the  Constitution  has  been  superseded  by  the  Twelfth 
Amendment. 


JB  THE  CONSTITUTION  OP  THE  UNITED  STATES. 

during  the  period  for  which  he  may  have  been  elected,  and  he 
shall  not  receive  within  that  period  any  other  emolument  from 
the  United  States  or  any  of  them. 

®^  Before  he  enter  on  the  execution  of  his  office  he  shall  take 
the  following  oath  or  affirmation: 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will  to  the  best 
of  my  ability  preserve,  protect,  and  defend  the  Constitution  of 
the  United  States." 

SECTION  II. 

•^  The  President  shall  be  Commander-in-chief  of  the  Army  and 
Xavy  of  the  United  States,  and  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States;  he  may 
require  the  opinion,  in  writing,  of  the  principal  officer  in  each  of 
the  executive  departments,  upon  any  subject  relating  to  the  duties 
of  their  respective  offices,  and  he  shall  have  power  to  grant  re- 
prieves and  pardons  for  oifenses  against  the  United  States,  except 
in  cases  of  impeachment. 

"*  He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two-thirds  of  the  Senators 
present  concur;  and  he  shall  nominate,  and,  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint  ambassadors,  other 
public  ministers  and  consuls,  judges  of  the  Supreme  Court,  and  all 
other  officers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  established  by 
law;  but  the  Congress  may  by  law  vest  the  appointment  of  such 
inferior  officers,  as  they  think  proper,  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments. 

"'  The  President  shall  have  power  to  fill  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next  session. 

SECTION  III. 

•"  He  shall  from  time  to  time  give  to  the  Congress  information 
of  the  state  of  the  Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient;  he  may, 
on  extraordinary  occasions,  convene  both  houses,  or  either  of 
them,  and  in  case  of  disagreement  between  them  with  respect  to 
the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as 
he  shall  think  proper;  he  shall  receive  ambassadors  and  other 
public  ministers;  he  shall  take  care  that  the  laws  be  faithfully 
executed,  and  shall  commission  all  the  officers  of  the  United 
States. 

SECTION  IV. 

*^  The  President,  Vice-President,  and  all  civil  officers  of  the 
United  States  shall  be  removed  from  office  on  impeachment  for 


THE  CONSTITUTION  OF   THE  UNITED  STATES.  9 

and  conviction  of  treason,  bribery,  or  other  high  crimes  and  mis- 
demeanors. 

AETICLE   III. 

SECTION  I. 

**  The  judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish.  The  judges,  both 
of  the  supreme  and  inferior  courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for  their  services 
a  compensation  which  shall  not  be  diminished  during  their  con- 
tinuance in  office. 

SECTION  11. 

°^  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority; 
to  all  cases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls; to  all  cases  of  admiralty  and  maritime  jurisdiction;  to  con- 
troversies to  which  the  United  States  shall  be  a  party;  to  contro- 
versies between  two  or  more  States;  between  a  State  and  citizens 
of  another  State;  between  citizens  of  different  States;  between 
citizens  of  the  same  State  claiming  lands  under  grants  of  different 
States,  and  between  a  State,  or  the  citizens  thereof,  and  foreign 
States,  citizens,  or  subjects. 

■"^  In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Su- 
preme Court  shall  have  original  jurisdiction.  In  all  the  other  cases 
before  mentioned  the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  Congress  shall  make. 
.  '^^  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jury;  and  such  trial  shall  be  held  in  the  State  where  the 
said  crimes  shall  have  been  committed;  but  when  not  committed 
within  any  State,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 

SECTION  III. 

''^  Treason  against  the  United  States  shall  consist  only  in  levy- 
ing war  against  them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort.  No  person  shall  be  convicted  of  treason  unless 
on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court. 

'^  The  Congress  shall  have  power  to  declare  the  punishment 
of  treason,  but  no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture  except  during  the  life  of  the  person  attainted. 


10  THE  CONSTITUTION  OF   THE  UNITED  STATES. 

ARTICLE  rV. 

SECTION  L 

'*  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State.  And 
the  Congress  may  by  general  laws  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

SECTION  II. 

^'  The  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States. 

'*  A  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  State, 
shall,  on  demand  of  the  executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime. 

'^  No  person  held  to  service  or  labor  in  one  Statte,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or 
labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due. 

SECTION  III. 

■^*  New  States  may  be  admitted  by  the  Congress  into  this  Union; 
but  no  new  State  shall  be  formed  or  erected  within  -the  jurisdiction 
of  any  other  State;  nor  any  State  be  formed  by  the  junction  of 
two  or  more  States  or  parts  of  States,  without  the  consent  of  the 
legislatures  of  the  States  concerned  as  well  as  of  the  Congress. 

'"  The  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  prejudice  any  claims  of 
the  United  States  or  of  any  particular  State. 

SECTION  IV. 

*"  The  United  States  shall  guarantee  to  every  State  m  this 
Union  a  republican  form  of  government,  and  shall  protect  each  of 
them  against  invasion,  and  on  application  of  the  legislature,  or 
of  the  executive  (when  the  legislature  cannot  be  convened),  against 
domestic  violence. 

ARTICLE    V. 

'*  The  Congress,  whenever  two-thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or, 


THE  CONSTITUTION  OF   THE  UNITED  STATES.  11 

on  the  application  of  the  legislatures  of  two-thirds  of  the  several 
States,  shall  call  a  convention  for  proposing  amendments,  which 
in  either  case  shall  be  valid  to  all  intents  and  purposes  as  part  of 
this  Constitution,  when  ratified  by  the  legislatures  of  three-fourths 
of  the  several  States,  or  by  conventions  in  three-fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  proposed  bv 
the  Congress,  provided  that  no  amendments  which  may  be  made 
prior  to  the  year  one  thousand  eight  hundred  and  eight  shall  in 
any  manner  affect  the  first  and  fourth  clauses  in  the  ninth  section 
of  the  first  article;  and  that  no  State,  without  its  consent,  shall 
be  deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE   VI. 

^-  All  debts  contracted  and  engagements  entered  into,  before 
the  adoption  of  this  Constitution,  shall  be  as  valid  against  the 
United  States  under  this  Constitution  as  under  the  confederation. 

*^  This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land;  and  the  judges  in  every  State 
shall  be  bound  thereby,  anything  in  the  Constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding. 

^*  The  Senators  and  Representatives  before  mentioned,  and  the 
members  of  the  several  State  legislatures,  and  all  executive  and 
judicial  officers  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  oath  or  affirmation  to  support  this  Con- 
stitution; but  no  religious  test  shall  ever  be  required  as  a  qualifi- 
cation to  any  office  or  public  trust  under  the  United  States. 

ARTICLE  VII. 

*^  The  ratification  of  the  conventions  of  nine  States  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between  the 
States  so  ratifying  the  same. 

^'  Done  in  convention  by  the  unanimous  consent  of  the  States 
present,  the  seventeenth  day  of  September,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty-seven,  and 
of  the  independence  of  the  United  States  of  America  the 
twelfth.  In  wHness  whereof,  we  have  hereunto  subscribed 
our  names. 

George  Washington,  President,  and  Deputy  from  Virginia. 

New  Hampshire — John  Langdon,  Nicholas  Oilman. 

Massachusetts — Nathaniel  Gorham,  Rufus  King. 

Connecticut — William  Samuel  Johnson,  Roger  Sherman. 

New  York — Alexander  Hamilton. 

New  Jersey — William  Livingston,  David  Brearly,  William  Pat- 
terson, Jonathan  Dayton. 


12  THE  CONSTITUTION  OF   THE  UNITED  STATES. 

Pennsylvania — Benjamin  Franklin,  Thomas  Mifflin,  Robert  Mor- 
ris, George  Clymer,  Thomas  Fitzsimons,  Jared  Ingersoll,  James 
Wilson,  Gouverneur  Morris. 

Delaware — George  Read,  Gunning  Bedford,  Jr.,  John  Dickinson, 
Richard  Bassett,  Jacob  Broom. 

Maryland — James  McHenry,  Daniel  of  St.  Thomas  Jenifer,  Daniel 
Carroll. 

Virginia — John  Blair,  James  Madison,  Jr. 

North  Carolina — William  Blount,  Richard  Dobbs  Spaight,  Hugh 
Williamson. 

South  Carolina — John  Rutledge,  Charles  Cotesworth  Pinckney, 
Charles  Pinckney,  Pierce  Butler. 

Georgia — William  Few,  Abraham  Baldwin. 

Attest:     William  Jackson,  Secretary. 


AMENDMENTS. 


ARTICLE   I. 

•^  Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech  or  of  the  press;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a  redress 
of  grievances. 

ARTICLE   II. 

*®A  well-regulated  militia  being  necessary  to  the  security  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed. 

ARTICLE  III. 

*®  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

ARTICLE  IV. 

•**  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particularly  de- 


THE  CONSTITUTION  OF   THE  UNITED  STATES.  13 

scribing  the  place  to  be  searched,  and  the  person  or  things  to  be 
seized. 

ARTICLE   V. 

®^  No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment  of 
a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger;  nor  shall  any  person  be  subject  for  the  same  offense  to 
be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  nor  be  de- 
prived of  life,  liberty,  or  property,  without  due  process  of  law; 
nor  shall  private  property  be  taken  for  public  use  without  just 
compensation. 

ARTICLE   VI. 

^^  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  assist- 
ance of  counsel  for  his  defense. 

ARTICLE  VII. 

®^  In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

ARTICLE  YIII. 

'*  Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

"  The  enumeration  in  the  Constitution  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the 
people. 

ARTICLE   X. 

"  The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively  or  to  the  people. 


14  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

ARTICLE   Xr. 

"■^  The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or  prose- 
cuted against  one  of  the  United  States  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  any  foreign  State. 

ARTICLE  XIL 

®*  The  electors  shall  meet  in  their  respective  States  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  State  with  them- 
selves; they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice- 
President,  and  they  shall  make  distinct  lists  of  all  persons  voted 
for  as  President  and  of  all  persons  voted  for  as  Vice-President, 
and  of  the  number  of  votes  for  each;  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  the  government 
of  the  United  States,  directed  to  the  President  of  the  Senate. 
The  President  of  the  Senate  shall,  in  the  presence  of  the  Senate 
and  House  of  Representatives,  open  all  the  certificates  and  the 
vot€s  shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  for  President  shall  be  the  President,  if  such 
number  be  a  majority  of  -the  whole  number  of  electors  appointed; 
and  if  no  person  have  such  majority,  then  from  the  persons  hav- 
ing the  highest  numbers  not  exceeding  three  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall  choose 
immediately,  by  ballot,  the  President.  But  in  choosing  the  Presi- 
dent the  votes  shall  be  taken  by  States,  the  representation  from 
each  State  having  one  vote;  a  quorum  for  this  purpose  shall  con- 
sist of  a  member  or  members  from  two-thirds  of  the  States,  and 
a  majority  of  all  the  States  shall  be  necessary  to  a  choice.  And 
if  the  House  of  Representatives  shall  not  choose  a  President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the  fourth 
day  of  March  next  following,  then  the  Vice-President  shall  act 
as  President,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President. 

*®  The  person  having  the  greatest  number  of  votes  as  Vice-Presi- 
dent shall  be  the  Vice-President,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed;  and  if  no  person  have 
a  majority,  then  from  the  two  highest  numbers  on  the  list  the 
Senate  shall  choose  the  Vice-President;  a  quorum  for  the  pur- 
pose shall  consist  of  two-thirds  of  the  whole  number  of  Senators, 
and  a  majority  of  the  whole  number  shall  be  necessary  to  a  choice. 
But  no  person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 


THE  CONSTITUTION  OF  THE  UNITED  STATES.  15 


ARTICLE  XIII. 

*"*  Section  1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States  or  any  place  sub- 
ject to  their  jurisdiction, 

^"^  Section  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

ARTICLE  XIV. 

^"2  Section  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.  No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 

^"^  Section  2.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice-President  of  the  United  States, 
Representatives  in  Congress,  the  executive  and  judicial  officers 
of  a  State,  or  the  members  of  the  legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  State,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion,  or  other  crime,  the 
basis  of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State. 

^"*  Section  3.  No  person  shall  be  a  Senator  or  Representative 
in  Congress,  or  elector  of  President  and  Vice-President,  or  hold 
any  office,  civil  or  military,  under  the  United  States  or  under 
any  State,  who,  having  previously  taken  an  oath  as  a  member  of 
Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the  same,  or 
given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may, 
by  a  vote  of  two-thirds  of  each  house,  remove  such  disability. 

^^^  Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  insurrection 
or  rebellion,  shall  not  be  questioned.  But  neither  the  United 
States  nor  any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the  United 


16  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave;  but 
all  such  debts,  obligations,  and  claims  shall  be  held  illegal  and 
void. 

^"^  Section  5.  The  Congress  shall  have  power  to  enforce,  by 
appropriate  legislation,  the  provisions  of  this  article. 

ARTICLE   XV. 

^"^  Section  1.  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States  or  by 
any  State  on  account  of  race,  color,  or  previous  condition  of  servi- 
tude. 

^"^  Section  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


I.  THE  VALIDITY  OF  LEGISLATION. 


MAEBUEY  V.  MADISOK 

1  Cranch.,  137.    Decided  1803. 

At  the  last  term,  namely,  December  term,  1801,  William  Mar- 
bury,  Dennis  Eamsey,  Eobert  Townsend  Hooe,  and  William  Har- 
per, by  their  counsel,  Charles  Lee,  Esq.,  late  Attorney-general  of 
the  United  States,  severally  moved  the  court  for  a  rule  to  James 
Madison,  Secretary  of  State  of  the  United  States,  to  show  cause 
why  a  mandamus  should  not  issue  commanding  him  to  cause  to 
be  delivered  to  them  respectively  their  several  commissions  as 
justices  of  the  peace  in  the  District  of  Columbia.  This  motion 
was  supported  by  affidavits  of  the  following  facts:  that  notice 
of  this  motion  had  been  given  to  Mr.  Madison;  that  Mr.  Adams, 
the  late  President  of  the  United  States,  nominated  the  applicant 
to  the  senate  for  their  advice  and  consent  to  be  appointed  justices 
of  the  peace  of  the  District  of  Columbia;  that  the  senate  advised 
and  consented  to  the  appointments;  that  commissions  in  due  form 
were  signed  by  the  said  president  appointing  them  justices,  etc., 
end  that  the  seal  of  the  United  States  was  in  due  form  affixed  to 
the  said  commissions  by  the  secretary  of  state;  that  the  applicants 
have  requested  Mr.  Madison  to  deliver  them  their  said  commis- 
sions, who  has  not  complied  with  that  request;  and  that  their  said 
commissions  are  withheld  from  them;  that  the  applicants  have 
made  application  to  Mr.  Madison,  as  secretary  of  state  of  the 
United  States,  at  his  office,  for  information  whether  the  commis- 
sions were  signed  and  sealed  as  aforesaid;  that  explicit  and  satis- 
factory information  has  not  been  given  in  answer  to  that  inquiry, 
either  by  the  secretary  of  state  or  any  officer  in  the  department 
of  state;  that  application  has  been  made  to  the  secretary  of  the 
senate  for  a  certificate  of  the  nomination  of  the  applicants,  and 
of  the  advice  and  consent  of  the  senate,  who  has  declined  giving 
such  a  certificate;  whereupon  a  rule  was  laid  to  show  cause  on  the 
fourth  day  of  this  term.  This  rule  having  been  duly  served,  Mr. 
Lee  read  the  affidavit  of  Dennis  Eamsey,  and  the  printed  journals 
i  17 


18  CASES  ON  CONSTITUTIONAL  LAW. 

of  the  senate  of  31st  January,  1803,  respecting  the  refusal  of  the 
senate  to  suffer  their  secretary  to  give  the  information  requested. 
He  then  called  Jacob  Wagner  and  Daniel  Brent,  who  had  been 
summoned  to  attend  the  court,  and  who  had,  as  it  is  understood, 
declined  giving  a  voluntary  affidavit.  They  objected  to  being 
sworn,  alleging  that  they  were  clerks  in  the  department  of  state, 
and  not  bound  to  disclose  any  facts  relating  to  the  business  or 
transactions  in  the  office. 

The  court  ordered  the  witnesses  to  be  sworn,  and  their  answers 
taken  in  writing,  but  informed  them  that  when  the  questions  were 
asked  they  might  state  their  objections  to  answering  each  par- 
ticular question,  if  they  had  any. 

Mr.  Lincoln,  attorney-general,  having  been  summoned,  and  now 
called,  objected  to  answering.  He  requested  that  the  questions 
might  be  put  in  writing,  and  that  he  might  afterwards  have  time 
to  determine  whether  he  would  answer.  On  the  one  hand  he 
respected  the  jurisdiction  of  this  court,  and  on  the  other  he  felt 
himself  bound  to  maintain  the  rights  of  the  executive.  He  was 
acting  as  secretary  of  state  at  the  time  when  the  transaction  hap- 
pened. He  was  of  opinion,  and  his  opinion  was  supported  by  that 
of  others  whom  he  highly  respected,  that  he  was  not  bound,  and 
ought  not  to  answer,  as  to  any  facts  which  came  officially  to  his 
knowledge  while  acting  as  secretary  of  state. 

The  questions  being  ^vritten,  were  then  read  and  handed  to  him. 
He  repeated  the  ideas  he  had  before  suggested,  and  said  his  objec- 
tions were  of  two  kinds. 

1st,  He  did  not  think  himself  bound  to  disclose  his  official 
transactions  while  acting  as  Secretary  of  State;    and, 

2d.  He  ought  not  to  be  compelled  to  answer  anything  which 
might  tend  to  criminate  himself. 

Mr.  Lincoln  thought  it  was  going  a  great  way  to  say  that  every 
Secretary  of  State  should  at  all  times  be  liable  to  be  called  upon 
to  appear  as  a  witness  in  a  court  of  justice,  and  testify  to  facts 
which  came  to  his  knowledge  officially.  He  felt  himself  delicately 
situated  between  his  duty  to  this  court  and  the  duty  he  conceived 
he  owed  to  an  executive  department;  and  hoped  the  court  would 
give  him  time  to  consider  the  subject. 

The  court  said  that  if  Mr.  Lincoln  wished  time  to  consider  what 
answers  he  should  make,  they  would  give  him  time;  but  they  had 
no  doubt  he  ought  to  answer.  There  was  nothing  confidential 
required  to  be  disclosed.  If  there  had  been  he  was  not  obliged 
to  answer  it;  and  if  he  thought  that  anything  was  communicated 
to  him  in  confidence  he  was  not  bound  to  disclose  it;    nor  was 


MARBURY  V.  MADISON.  19 

he  obliged  to  state  anything  which  would  criminate  himself;  but 
that  the  fact  whether  such  commissions  had  been  in  the  office  or 
not,  could  not  be  a  confidential  fact;  it  is  a  fact  which  all  the 
world  have  a  right  to  know.  If  he  thought  any  of  the  questions 
improper,  he  might  state  his  objections. 

Mr.  Lincoln  then  prayed  time  till  the  next  day  to  consider  of 
his  answers  under  this  opinion  of  the  court. 

The  court  granted  it,  and  postponed  further  consideration  of  the 
cause  till  the  next  day. 

At  the  opening  of  the  court  on  the  next  morning,  Mr.  Lincoln 
said  he  had  no  objection  to  answering  the  questions  proposed, 
excepting  the  last,  which  he  did  not  think  himself  obliged  to 
answer  fully.  The  question  was,  what  had  been  done  with  the 
commissions?  He  had  no  hesitation  in  saying  that  he  did  not 
know  that  they  ever  came  to  the  possession  of  Mr.  Madison,  nor 
did  he  know  that  they  were  in  the  office  when  Mr.  Madison  took 
possession  of  it.  He  prayed  the  opinion  of  the  court  whether  he 
was  obliged  to  disclose  what  had  been  done  with  the  commissions. 

The  court  were  of  opinion  that  he  was  not  bound  to  say  what 
had  become  of  them;  if  they  never  came  to  the  possession  of  Mr. 
Madison  it  was  immaterial  to  the  present  cause  what  had  been 
done  with  them  by  others. 

Afterwards,  on  the  24th  February,  the  following  opinion  of  the 
court  was  delivered  by  the  Chief  Justice.  At  the  last  term  on 
the  affidavits  then  read  and  filed  with  the  clerk,  a  rule  was  granted 
in  this  case,  requiring  the  Secretary  of  State  to  show  cause  why  a 
mandamus  should  not  issue,  directing  him  to  deliver  to  William 
Marbury  his  commission  as  a  justice  of  the  peace  for  the  county 
of  Washington,  in  the  District  of  Columbia. 

No  cause  has  been  shown,  and  the  present  motion  is  for  a 
mandamus.  The  peculiar  delicacy  in  this  case,  the  novelty  of 
^Hie  of  its  circumstances,  and  the  real  difficulty  attending  the 
points  which  occur  in  it,  require  a  complete  exposition  of  the  prin- 
ciples on  which  the  opinion  to  be  given  by  the  court  is  founded.. . 

The  first  object  of  inquiry  is, 

1st.  Has  the  applicant  a  right  to  the  commission  he  demands? 
.  .  .  [The  court  holds  that,  having  been  duly  appointed,  he 
has  a  right  to  his  commission.] 

This  brings  us  to  the  second  inquiry,  which  is, 

2dl.y.  If  he  has  a  right,  and  that  right  has  been  violated,  do 
the  laws  of  his  country  afford  him  a  remedy?  .  .  .  [The  court 
finds  that  they  do.] 

It  remains  to  be  inquired  whether, 


20  CASES  ON  CONSTITUTIONAL  LAW. 

3dly.  He  is  entitled  to  the  remedy  for  which  he  applies.  This 
depends  on, 

1st.     The  nature  of  the  writ  applied  for;  and, 

2dly.     The  power  of  this  court. 

1st.  The  nature  of  the  writ.  .  .  .  This,  then,  is  a  plain 
case  for  a  mandamus,  either  to  deliver  the  commission,  or  a  copy 
of  it  from  the  record;  and  it  only  remains  to  be  inquired. 

Whether  it  can  issue  from  this  court. 

The  act  to  establish  the  judicial  courts  of  the  United  States 
authorizes  the  supreme  court  "to  issue  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law,  to  any  courts 
appointed,  or  persons  holding  office,  under  the  authority  of  the 
United  States."  .  .  .  The  constitution  vests  the  whole  judicial 
power  of  the  United  States  in  one  supreme  court,  and  such  inferior 
courts  as  Congress  shall,  from  time  to  time,  ordain  and  establish. 
.  .  .  In  the  distribution  of  this  power  it  is  declared  that  "the 
supreme  court  shall  have  original  jurisdiction  in  all  cases  affect- 
ing ambassadors,  other  public  ministers  and  consuls,  and  those 
in  which  a  State  shall  be  a  party.  In  all  other  cases,  the  supreme 
court  shall  have  appellate  jurisdiction."  ....  If  it  had  been 
intended  to  leave  it  in  the  discretion  of  the  legislature  to  appor- 
tion the  judicial  power  between  the  supreme  and  inferior  courts 
according  to  the  will  of  that  body,  it  would  certainly  have  been 
useless  to  have  proceeded  further  than  to  have  defined  the  judi- 
cial power,  and  the  tribunals  in  which  it  should  be  vested.  The 
subsequent  part  of  the  section  is  mere  surplusage,  is  entirely  with- 
out meaning,  if  such  is  to  be  the  construction.  ...  To  enable 
this  court,  then,  to  issue  a  mandamus,  it  must  be  shown  to  be 
an  exercise  of  appellate  jurisdiction,  or  to  be  necessary  to  enable 
them  to  exercise  appellate  jurisdiction.  .  .  .  It  is  the  essential 
criterion  of  appellate  jurisdiction,  that  it  revises  and  corrects  the 
proceedings  in  a  cause  already  instituted,  and  does  not  create 
that  cause.  Although,  therefore,  a  mandamus  may  be  directed 
to  courts,  yet  to  issue  such  a  writ  to  an  officer  for  the  delivery 
of  a  paper,  is  in  effect  the  same  as  to  sustain  an  original  action 
for  that  paper,  and,  therefore,  seems  not  to  belong  to  appellate, 
but  to  original  jurisdiction.  Neither  is  it  necessary  in  such  a  case 
as  this,  to  enable  the  court  to  exercise  its  appellate  jurisdiction. 

The  authority,  therefore,  given  to  the  supreme  court,  by  the 
act  establishing  the  judicial  courts  of  the  United  States,  to  issue 
writs  of  mandamus  to  public  officers,  appears  not  to  be  warranted 
by  the  constitution;  and  it  becomes  necessary  to  inquire  whether 
a  jurisdiction  so  conferred  can  be  exercised. 


MARBURY  V.  MADISON.  21 

The  question  whether  an  act  repugnant  to  the  constitution  can 
become  the  law  of  the  land,  is  a  question  deeply  interesting  to 
the  United  States;  but,  happily,  not  of  an  intricacy  proportioned 
to  its  interest.  It  seems  only  necessary  to  recognize  certain  prin- 
ciples, supposed  to  have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles  as,  in  their  opinion,  shall  most 
conduce  to  their  own  happiness,  is  the  basis  on  which  the  whole 
American  fabric  has  been  erected.  The  exercise  of  this  original 
right  is  a  very  great  exertion;  nor  can  it  nor  ought  it  to  be 
frequently  repeated.  The  principles,  therefore,  so  established,  are 
deemed  fundamental.  And  as  the  authority  from  which  they 
proceed  is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
permanent. 

This  original  and  supreme  will  organizes  the  government,  and 
assigns  to  different  departments  their  respective  powers.  It  may 
cither  stop  here,  or  establish  certain  limits  not  to  be  transcended 
by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  descrip- 
tion. The  powers  of  the  legislature  are  defined  and  limited;  and 
that  those  limits  may  not  be  mistaken,  or  forgotten,  the  con- 
stitution is  written.  To  what  purpose  are  powers  limited,  and  to 
what  purpose  is  that  limitation  committed  to  writing,  if  these  limits 
may,  at  any  time,  be  passed  by  those  intended  to  be  restrained? 
The  distinction  between  a  government  with  limited  and  unlimited 
powers  is  abolished,  if  those  limits  do  not  confine  the  persons 
on  whom  they  are  imposed,  and  if  acts  prohibited  and  acts  allowed 
are  of  equal  obligation.  It  is  a  proposition  too  plain  to  be  con- 
tested, that  the  constitution  controls  any  legislative  aot  repugnant 
to  it;  or,  that  the  legislature  may  alter  the  constitution  by  an 
ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
constitution  is  either  a  superior  paramount  law,  unchangeable  by 
ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative  acts, 
and,  like  other  acts,  is  alterable  when  the  legislature  shall  please 
to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative 
act  contrary  to  the  constitution  is  not  law;  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on  the  part 
of  the  people,  to  limit  a  power  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions  con- 
template them  as  forming  the  fundamental  and  paramount  law  of 
the  nation,  and,  consequently,  the  theory  of  every  such  govern- 


2Z  CASES  ON  CONSTITUTIONAL  LAW. 

ment  must  be,  that  an  act  of  the  legislature,  repugnant  to  the 
constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitution,  and 
is  consequently  to  be  considered,  by  this  court,  as  one  of  the 
fundamental  principles  of  our  society.  It  is  not,  therefore,  to  be 
lost  sight  of  in  the  further  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution,  is 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts,  and 
oblige  them  to  give  it  effect?  Or,  in  other  words,  though  it  be 
not  law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law? 
This  would  be  to  overthrow  in  fact  what  was  established  in  theory; 
and  would  seem,  at  first  view,  an  absurdity  too  gross  to  be  insisted 
on.    It  shall,  however,  receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart- 
ment to  say  what  the  law  is.  Those  who  apply  the  rule  to  particu- 
lar cases,  must  of  necessity  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other,  the  courts  must  decide  on  the 
operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both  the  law 
and  the  constitution  apply  to  a  particular  case,  so  that  the  court 
must  either  decide  that  case  conformably  to  the  law,  disregarding 
the  constitution,  or  conformably  to  the  constitution,  disregarding 
the  law,  the  court  must  determine  which  of  these  conflicting  rules 
governs  the  case.     This  is  of  the  very  essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  constitution,  and  the  con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature,  the 
constitution,  and  not  such  ordinary  act,  must  govern  the  case  to 
which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  constitution 
is  to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to 
the  necessity  of  maintaining  that  courts  must  close  their  eyes  on 
the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act  which,  according  to 
the  principles  and  theory  of  our  government,  is  entirely  void,  is 
yet,  in  practice,  completely  obligatory.  It  would  declare  that  if 
the  legislature  shall  do  what  is  expressly  forbidden,  such  act,  not- 
withstanding the  express  prohibition,  is  in  reality  effectual.  It 
would  be  giving  to  the  legislature  a  practical  and  real  omnipotence, 
with  the  same  breath  which  professes  to  restrict  their  powers  within 
narrow  limits.  It  is  prescribing  limits,  and  declaring  that  those 
limits  may  be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  great- 


MARBURY  V.  MADISON.  23 

est  improvement  on  political  institutions,  a  written  constitution, 
would  of  itself  be  sufficient,  in  America,  where  written  constitu- 
tions have  been  viewed  with  so  much  reverence,  for  rejecting  the 
construction.  But  the  peculiar  expressions  of  the  constitution  of 
the  United  States  furnish  additional  arguments  in  favor  of  its  re- 
jection. 

The  judicial  power  of  the  United  States  is  extended  to  all  eases 
arising  under  the  constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say 
that  in  using  it  the  constitution  should  not  be  looked  into?  That 
a  case  arising  under  the  constitution  should  be  decided  without 
examining  the  instrument  under  which  it  arises? 

This  is  too  extravagant  to  be  maintained. 

In  some  eases,  then,  the  constitution  must  be  looked  into  by  the 
judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are  they 
forbidden  to  read  or  to  obey? 

There  are  many  other  parts  of  the  constitution  which  serve  to 
illustrate  this  subject. 

It  is  declared  that  "no  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  State.^'  Suppose  a  duty  on  the  export  of  cotton, 
of  tobacco,  or  of  flour;  and  a  suit  instituted  to  recover  it.  Ought 
judgment  to  be  rendered  in  such  a  case?  ought  the  judges  to  close 
their  eyes  on  the  constitution,  and  only  see  the  law? 

The  constitution  declares  "that  no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person  should 
be  prosecuted  under  it,  must  the  court  condemn  to  death  those 
victims  whom  the  constitution  endeavors  to  preserve? 

"No  person,"  says  the  constitution,  "shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court." 

Here  the  language  of  the  constitution  is  addressed  especially  to 
the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence  not 
to  be  departed  from.  If  the  legislature  should  change  that  rule, 
and  declare  one  witness,  or  a  confession  out  of  court,  sufficient  for 
conviction,  must  the  constitutional  principle  yield  to  the  legisla- 
tive act? 

From  these,  and  many  other  selections  which  might  be  made,  it 
is  apparent  that  the  framers  of  the  constitution  contemplated  that 
instrument  as  a  rule  for  the  government  of  courts,  as  well  as  of  the 
legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to  sup- 
port it?    This  oath  certainly  applies  in  an  especial  manner  to  their 


24  CASES  ON  CONSTITUTIONAL  LAW. 

conduct  in  their  official  character.  How  immoral  to  impose  it  on 
them,  if  they  were  to  be  used  as  the  instruments,  and  the  knowing 
instruments,  for  violating  what  they  swear  to  support! 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  on  this  subject.  It  is  in 
these  words:  "1  do  solemnly  swear  that  I  will  administer  justice 
without  respect  to  persons,  and  do  equal  right  to  the  poor  and  to 
the  rich;  and  that  I  will  faithfully  and  impartially  discharge  all 
the  duties  incumbent  on  me  as  ,  according  to  the  best  of  my 

abilities  and  understanding,  agreeably  to  the  constitution  and  laws 
of  the  United  States." 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to  the 
constitution  of  the  United  States,  if  that  constitution  forms  no 
rule  for  his  government — if  it  is  closed  upon  him,  and  cannot  be 
inspected  by  him? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 
mockery.  To  prescribe,  or  to  take  this  oath,  becomes  equally  a 
crime. 

It  is  also  not  entirely  unworthy  of  observation^  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  constitution  itself 
is  first  mentioned;  and  not  the  laws  of  the  United  States  generally, 
but  those  only  which  shall  be  made  in  pursuance  of  the  constitu- 
tion, have  that  rank. 

Thus,  the  particular  phraseology  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed 
to  be  essential  to  all  written  constitutions,  that  a  law  repugnant 
to  the  constitution  is  void;  and  that  courts,  as  well  as  other  de- 
partments, are  bound  by  that  instrument. 

The  rule  must  be  discharged. 

Note. — The  principle  that  the  courts  have  authority  to  pass 
upon  the  validity  of  legislation  had  been  asserted  in  at  least  five 
States  before  the  adoption  of  the  Constitution, — viz.,  in  Holmes 
V.  Walton,  in  New  Jersey,  1780;  in  Commonwealth  v.  Caton,  in 
Virginia,  in  1782;  in  Eutgers  v.  Waddington,  in  New  York,  in 
1784;  in  Trevett  v.  Weeden,  in  Rhode  Island,  in  1786;  and  in 
Bayard  v.  Singleton,  in  North  Carolina,  in  1787.  All  these  casea 
save  the  first  are  printed  in  Thayer's  Cases,  I,  55-80.  In  1792  the 
Supreme  Court  of  South  Carolina,  in  the  case  of  Bowman  v.  Mid- 
dleton  (1  Bay.,  252),  declared  that  an  act  passed  by  the  Colonial 
Legislature  in  1712,  which  took  away  the  freehold  of  one  man  and 
vested  it  in  another  without  any  compensation  or  even  a  trial  by 
the  jury  of  the  country,  was  "against  common  right,  as  well  as 


MARBURY  V.  MADISON.  25 

against  Magna  Charta,"  and  "therefore  ipso  facto  void."  For  a 
valuable  discussion  of  these  early  constitutional  cases,  see  an  article 
on  "The  Relation  of  the  Judiciary  to  the  Constitution,"  by  W.  M. 
Meigs,  in  American  Law  Review,  xix,  175  (1885).  See  also  Coxe, 
The  Judicial  Power  and  Unconstitutional  Legislation,  219-871. 
A  most  admirable  discussion  of  the  whole  question  is  found  in  an 
article  on  "The  Origin  and  Scope  of  the  American  Doctrine  of 
Constitutional  Law,"  by  Prof.  James  B.  Thayer,  in  Harvard  Law 
Review,  vii,  129  (1893).  For  an  adverse  view  of  the  power  of  the 
courts  over  unconstitutional  legislation,  see  Eakin  v.  Raub,  12 
Sergeant  and  Rawle  (Pennsylvania),  330,  also  printed  in  Thayer's 
Cases,  I,  133.  A  list  of  eases  in  which  the  Federal  Supreme  Court 
has  declared  statutes  or  parts  of  statutes  invalid  is  given  in  131 
U.  S.  Appendix,  ccxxxy.  The  list  is  incomplete,  one  of  the  n^pst 
conspicuous  omissions  being  the  Dred  Scott  case. 

"The  interpretation  of  the  laws  is  the  proper  and  peculiar  prov- 
ince of  the  courts.  A  Constitution  is,  in  fact,  and  must  be  re- 
garded by  the  Judges  as  a  fundamental  law.  It  must  therefore 
belong  to  them  to  ascertain  its  meaning,  as  well  as  the  meaning  of 
any  particular  act  proceeding  from  the  legislative  body.  If  there 
should  happen  to  be  an  irreconcilable  variance  between  the  two, 
that  which  has  the  superior  obligation  and  validity  ought,  of 
course,  to  be  preferred:  in  other  words,  the  Constitution  ought  to 
be  preferred  to  the  statutes,  the  intention  of  the  people  to  the  in- 
tention of  their  agents."    Hamilton,  in  The  Federalist,  No.  78. 

"If  they  [the  government  of  the  United  States]  were  to  make 
a  law  not  warranted  by  any  of  the  powers  enumerated,  it  would  be 
considered  by  the  judges  as  an  infringement  of  the  Constitution 
which  they  are  to  guard.  They  would  not  consider  such  a  law  as 
coming  under  their  jurisdiction.  They  would  declare  it  void."  . 
John  Marshall,  in  the  Virginia  Convention  of  1788,  Elliot's  De- 
bates, III,  553. 

"To  control  the  power  and  conduct  of  the  legislature,  by  an 
overruling  constitution,  was  an  improvement  in  the  science  and 
practice  of  government  reserved  to  the  American  states."  James 
Wilson,  in  the  Pennsylvania  Convention  of  1787,  Elliot's  De- 
bates, II,  432. 


11.  TAXATION. 


HYLTON  V.   THE   UNITED  STATES. 
3  Dallas,  171.    Decided  1796. 

This  was  a  writ  of  error  to  the  circuit  court  of  the  United 
States  for  the  district  of  Virginia.  The  question  raised,  and  all 
the  facts  necessary  to  be  adverted  to,  appear  in  the  opinions  of  the 
members  of  the  court.     ... 

The  court  delivered  these  opinions  seriatim,  in  the  following 
terms.  ^ 

Chase,  J.  By  the  case  stated,  only  one  question  is  submitted 
to  the  opinion  of  this  court:  Whether  the  law  of  congress  of  the 
5th  of  June,  1794  (1  U.  S.  Stat,  at  Large,  373),  entitled,  "An  act 
to  lay  duties  upon  carriages  for  the  conveyance  of  persons,"  is 
unconstitutional  and  void? 

The  principles  laid  down  to  prove  the  above  law  void,  are  these: 
That  a  tax  on  carriages  is  a  direct  tax,  and  therefore,  by  the  con- 
stitution, must  be  laid  according  to  the  census  directed  by  the  con- 
stitution to  be  taken,  to  ascertain  the  number  of  representatives 
from  each  State.  And  that  the  tax  in  question,  on  carriages,  is 
not  laid  by  that  rule  of  apportionment,  but  by  the  rule  of  uni- 
formity, prescribed  by  the  constitution  in  the  case  of  duties,  im- 
posts, and  excises;  and  a  tax  on  carriages  is  not  within  either  of 
those  descriptions.     .     .     . 

The  constitution  evidently  contemplated  no  taxes  as  direct  taxes, 
but  only  such  as  congress  could  lay  in  proportion  to  the  census. 
The  rule  of  apportionment  is  only  to  be  adopted  in  such  cases 
where  it  can  reasonably  apply;  and  the  subject  taxed  must  ever 
determine  the  application  of  the  rule. 

If  it  is  proposed  to  tax  any  specific  article  by  the  rule  of  appor- 
tionment, and  it  would  certainly  create  great  inequality  and  injus- 
tice, it  is  unreasonable  to  say  that  the  constitution  intended  such 
tax  should  be  laid  by  that  rule. 

1  The  Chief  Justice,  Ellsworth,  whole  of  the  argument,  he  declined 
was  sworn  into  office  in  the  morn-  taking  any  part  in  the  decision  of 
Ing;     but  not  having  heard   the     this  cause. 

26 


HYLTON  V.   UNITED  STATES.  27 

It  appears  to  me  that  a  tax  on  carriages  cannot  be  laid  by  thg 
rule  of  apportionment,  without  very  great  inequality  and  injustice. 
For  example,  suppose  two  States,  equal  in  census,  to  pay  eighty 
thousand  dollars  each,  by  a  tax  on  carriages  of  eighty  dollars  on 
every  carriage,  and  in  one  State  there  are  one  hundred  carriages 
and  in  the  other  one  thousand.  The  owners  of  carriages  in  one 
State  would  pay  ten  times  the  tax  of  owners  in  the  other.  A,  in 
one  State,  would  pay  for  his  carriage  eight  dollars;  but  B,  in  the 
other  State,  would  pay  for  his  carriage,  eighty  dollars. 

It  was  argued  that  a  tax  on  carriages  was  a  direct  tax,  and  might 
be  laid  according  to  the  rule  of  apportionment,  and,  as  I  under- 
stood, in  this  manner:  Congress,  after  determining  on  the  gross 
sum  to  be  raised,  was  to  apportion  it  according  to  the  census  and 
then  lay  it  in  one  State  on  carriages,  in  another  on  horses,  in  a 
tliird  on  tobacco,  in  a  fourth  on  rice,  and  so  on.  I  admit  that  this 
mode  might  be  adopted  to  raise  a  certain  sum  in  each  State,  ac- 
cording to  the  census,  but  it  would  not  be  a  tax  on  carriages,  but 
on  a  number  of  specific  articles;  and  it  seems  to  me  that  it  would 
be  liable  to  the  same  objection  of  abuse  and  oppression,  as  a  selec- 
tion of  any  one  article  in  all  the  States. 

I  think  an  annual  tax  on  carriages  for  the  conveyance  of  persons, 
may  be  considered  as  within  the  power  granted  to  congress  to  lay 
duties.  The  term  duty,  is  the  most  comprehensive,  next  to  the 
general  term  tax;  and  practically  in  Great  Britain,  whence  we 
take  our  general  ideas  of  taxes,  duties,  imposts,  excises,  customs, 
&c.,  embraces  taxes  on  stamps,  tolls  for  passage,  &c.,  &c.,  and  is 
not  confined  to  taxes  on  importation  only. 

It  seems  to  me  that  a  tax  on  expense  is  an  indirect  tax;  and  I 
think  an  annual  tax  on  a  carriage  for  the  conveyance  of  persons,  is 
of  that  kind;  because  a  carriage  is  a  consumable  commodity,  and 
such  annual  tax  on  it,  is  on  the  expense  of  the  owner. 

I  am  inclined  to  think,  but  of  this  I  do  not  give  a  judicial  opin- 
ion, that  the  direct  taxes  contemplated  by  the  constitution,  are 
only  two,  to  wit,  a  capitation  or  poll  tax,  simply  without  regard  to 
property,  profession,  or  any  other  circumstance.;  and  a  tax  on  land. 
I  doubt  whether  a  tax,  by  a  general  assessment  of  personal  prop- 
erty, within  the  United  States,  is  included  within  the  term  direct 
tax. 

As  I  do  not  think  the  tax  on  carriages  is  a  direct  tax,  it  is  un- 
necessary at  this  time  for  me  to  determine  whether  this  court 
constitutionally  possesses  the  power  to  declare  an  act  of  congress 
void,  on  the  ground  of  its  being  made  contrary  to,  and  in  violation 


28  CASES  ON  CONSTITUTIONAL  LAW. 

of  the  constitution;  but  if  the  court  have  such  power,  I  am  free 
to  declare,  that  I  will  never  exercise  it  but  in  a  very  clear  case. 
I  am  for  affirming  the  Judgment  of  the  circuit  court. 

Patersox,  J.  .  .  .  VThat  are  direct  taxes  within  the  mean- 
ing of  the  constitution?  The  constitution  declares  that  a  capita- 
tion tax  is  a  direct  tax;  and  both  in  theory  and  practice,  a  tax 
on  land  is  deemed  to  be  a  direct  tax.  In  this  way,  the  terms  direct 
taxes,  and  capitation  and  other  direct  tax,  are  satisfied.  It  is  not 
necessary  to  determine,  whether  a  tax  on  the  product  of  land  be  a 
direct  or  indirect  tax.  Perhaps  the  immediate  product  of  land,  in 
its  original  and  crude  state,  ought  to  be  considered  as  the  land 
itself;  it  makes  part  of  it,  or  else  the  provision  made  against  tax- 
ing exports  would  be  easily  eluded.  Land,  independently  of  its 
produce,  is  of  no  value.  "WTien  the  produce  is  converted  into  a 
manufacture  it  assumes  a  new  shape;  its  nature  is  altered,  its  orig- 
inal state  is  changed,  it  becomes  quite  another  subject,  and  it  will 
be  differently  considered.  Whether  direct  taxes,  in  the  sense  of 
the  constitution,  comprehend  any  other  tax  than  a  capitation  tax, 
and  tax  on  land,  is  a  questionable  point.  If  congress,  for  instance, 
should  tax,  in  the  aggregate  or  mass,  things  that  generally  pervade 
all  the  States  in  the  Union,  then  perhaps  the  rule  of  apportionment 
would  be  the  most  proper,  especially  if  an  assessment  was  to  inter- 
vene. This  appears,  by  the  practice  of  some  of  the  States,  to  have 
been  considered  as  a  direct  tax.  Whether  it  be  so  under  the  con- 
stitution of  the  United  States  is  a  matter  of  some  difficulty;  but 
as  it  is  not  before  the  court,  it  would  be  improper  to  give  any 
decisive  opinion  upon  it.  I  never  entertained  a  doubt  that  the 
principal,  I  will  not  say  the  only  objects,  that  the  framers  of  the 
constitution  contemplated  as  falling  within  the  rule  of  apportion- 
ment, were  a  capitation  tax  and  a  tax  on  land.  Local  considera- 
tions, and  the  particular  circumstances  and  relative  situation  of 
the  States,  naturally  lead  to  this  view  of  the  subject.  The  pro- 
vision was  made  in  favor  of  the  southern  States.  They  possessed 
a  large  number  of  slaves;  they  had  extensive  tracts  of  territory, 
thinly  settled  and  not  very  productive.  A  majority  of  the  States 
had  but  few  slaves,  and  several  of  them  a  limited  territory,  well 
settled,  and  in  a  high  state  of  cultivation.  The  Southern  States, 
if  no  provision  had  been  introduced  in  the  constitution,  would 
have  been  wholly  at  the  mercy  of  the  other  States.  Congress  in 
such  case  might  tax  slaves,  at  discretion  or  arbitrarily,  and  land  in 
every  part  of  the  L^nion  after  the  same  rate  or  measure;  so  much 
a  head  in  the  first  instance,  and  so  much  an  acre  in  the  second. 


HYLTON  V.  UNITED  STATES.  «? 

To  guard  them  against  imposition,  in  these  particulars,  was  the 
reason  of  introducing  the  clause  in  the  constitution  which  directs 
that  representatives  and  direct  taxes  shall  be  apportioned  among 
the  States  according  to  their  respective  numbers.     .     .    . 

All  taxes  on  expense  or  consumption  are  indirect  taxes.  A  tax 
on  carriages  is  of  this  kind,  and  of  course  is  not  a  direct  tax.  In- 
direct taxes  are  circuitous  modes  of  reaching  the  revenue  of  indi- 
viduals, who  generally  live  according  to  their  income.  In  many 
cases  of  this  nature  the  individual  may  be  said  to  tax  himself.  I 
shall  close  this  discourse  with  reading  a  passage  or  two  from 
Smith's  Wealth  of  Nations. 

"The  impossibility  of  taxing  people  in  proportion  to  their  rev- 
enue by  any  capitation,  seems  to  have  given  occasion  to  the  inven- 
tion of  taxes  upon  consumable  commodities;  the  State  not  know- 
ing how  to  tax  directly  and  proportionably  the  revenue  of  its  sub- 
jects, endeavors  to  tax  it  indirectly  by  taxing  their  expense,  which 
it  is  supposed  in  most  cases  will  be  nearly  in  proportion  to  their 
revenue.  Their  expense  is  taxed  by  taxing  the  consumable  com- 
modities upon  which  it  is  laid  out."    Vol.  iii,  331. 

"Consumable  commodities,  whether  necessaries  or  luxuries,  may 
be  taxed  in  two  different  ways;  the  consumer  may  either  pay  an 
annual  sum  on  account  of  his  using  or  consuming  goods  of  a  cer- 
tain kind,  or  the  goods  may  be  taxed  while  they  remain  in  the 
hands  of  the  dealer,  and  before  they  are  delivered  to  the  consumer. 
The  consumable  goods,  which  last  a  considerable  time  before  they 
are  consumed  altogether,  are  most  properly  taxed  in  the  one  way; 
those  of  which  the  consumption  is  immediate,  or  more  speedy,  in 
the  other;  the  coach  tax  and  plate  tax  are  examples  of  the  former 
method  of  imposing;  the  greater  part  of  the  other  duties  of  excise 
and  customs,  of  the  latter."    Vol.  iii,  p.  341. 

iNam,  therefore,  of  opinion  that  the  judgment  rendered  in  the 
circuit  court  of  Virginia  ought  to  be  affirmed. 

Ihedell,  J.  I  agree  in  opinion  with  my  brothers,  who  have  al- 
ready expressed  theirs,  that  the  tax  in  question  is  agreeable  to  the 
constitution;  and  the  reasons  which  have  satisfied  me  can  be  de- 
livered in  a  very  few  words,  since  I  think  the  constitution  itself 
affords  a  clear  guide  to  decide  the  controversy. 

The  congress  possess  the  power  of  taxing  all  taxable  objects, 
without  limitation,  with  the  particular  exception  of  a  duty  on 
exports. 

There  are  two  restrictions  only  on  the  exercise  of  this  authority — 


30  CASES  ON  CONSTITUTIONAL  LAW. 

1.  All  direct  taxes  must  be  apportioned. 

2.  All  duties,  imposts  and  excises  must  be  uniform. 

If  the  carriage  tax  be  a  direct  tax,  within  the  meaning  of  the 
constitution,  it  must  be  apportioned.  If  it  be  a  duty,  impost,  or 
excise,  within  the  meaning  of  the  constitution,  it  must  be  uniform. 

If  it  can  be  considered  as  a  tax,  neither  direct  within  the  mean- 
ing of  the  constitution,  nor  comprehended  within  the  term  duty, 
impost,  or  excise;  there  is  no  provision  in  the  constitution,  one 
way  or  another,  and  then  it  must  be  left  to  such  an  operation  of  the 
power,  as  if  the  authority  to  lay  taxes  had  been  given  generally  in 
all  instances,  without  saying  whether  they  should  be  apportioned 
or  uniform;  and  in  that  case,  I  should  presume,  the  tax  ought  to 
be  uniform;  because  the  present  constitution  was  particularly  in- 
tended to  affect  individuals,  and  not  States,  except  in  particular 
cases  specified;  and  this  is  the  leading  distinction  between  the 
articles  of  confederation  and  the  present  constitution. 

As  all  direct  taxes  must  be  apportioned,  it  is  evident  that  the 
constitution  contemplated  none  as  direct  but  such  as  could  be 
apportioned. 

If  this  cannot  be  apportioned,  it  is,  therefore,  not  a  direct  tax 
in  the  sense  of  the  constitution. 

That  this  tax  cannot  be  apportioned  is  evident.  Suppose  ten 
dollars  contemplated  as  a  tax  on  each  chariot,  or  post  chaise,  in  the 
United  States,  and  the  number  of  both  in  all  the  United  States  be 
computed  at  one  hundred  and  five,  the  number  of  representatives 
in  congress, — this  would  produce  in  the  whole  one  thousand  and 
fifty  dollars;  the  share  of  Virginia,  being  19-105  parts,  would  be 
one  hundred  and  ninety  dollars;  the  share  of  Connecticut,  being 
7-105  parts,  would  be  seventy  dollars;  then  suppose  Virginia  had 
fifty  carriages,  Connecticut  two,  the  share  of  Virginia  being  one 
hundred  and  ninety  dollars,  this  must  of  course  be  collected  from 
the  owners  of  carriages,  and  there  would  therefore  be  collected 
from  each  carriage  three  dollars  and  eighty  cents;  the  share  of 
Connecticut  being  seventy  dollars,  each  carriage  would  pay  thirty- 
five  dollars. 

If  any  State  had  no  carriages,  there  could  be  no  apportionment 
at  all.  This  mode  is  too  manifestly  absurd  to  be  supported,  and 
has  not  even  been  attempted  in  debate.  But  two  expedients  have 
been  proposed  of  a  very  extraordinary  nature  to  evade  the  difficulty. 

1.  To  raise  the  money  a  tax  on  carriages  would  produce,  not  by 
laying  a  tax  on  each  carriage  uniformly,  but  by  selecting  different 
articles  in  different  States,  so  that  the  amount  paid  in  each  State 
may  be  equal  to  the  sum  due  upon  a  principle  of  apportionment. 


HYLTON  V.   UNITED  STATES.  31 

One  State  might  pay  by  a  tax  on  carraiges,  another  by  a  tax  on 
slaves,  &c. 

I  should  have  thought  this  merely  an  exercise  of  ingenuity,  if  it 
had  not  been  pressed  with  some  earnestness;  and  as  this  was  done 
by  gentlemen  of  high  respectability  in  their  profession,  it  deserves 
a  serious  answer,  though  it  is  very  diificult  to  give  such  a  one. 

1.  This  is  not  an  apportionment,  of  a  tax  on  carriages,  but  of 
the  money  a  tax  on  carriages  might  be  supposed  to  produce,  which 
is  quite  a  diifferent  thing. 

2.  It  admits  that  congress  cannot  lay  an  uniform  tax  on  all  car- 
riages in  the  Union,  in  any  mode,  but  that  they  may  on  carriages 
in  one  or  more  States.  They  may  therefore  lay  a  tax  on  carriages 
in  fourteen  States,  but  not  in  the  fifteenth. 

3.  If  congress,  according  to  this  new  decree,  may  select  carriages 
as  a  proper  object,  in  one  or  more  States,  but  omit  them  in  others, 
I  presume  they  may  omit  them  in  all,  and  select  other  articles. 

Suppose,  then,  a  tax  on  carriages  would  produce  $100,000,  and 
a  tax  on  horses  a  like  sum,  $100,000,  and  $100,000  were  to  be 
apportioned  according  to  that  mode;  gentlemen  might  amuse 
themselves  with  calling  this  a  tax  on  carriages,  or  a  tax  on  horses, 
while  not  a  single  carriage,  nor  a  single  Ijorse  was  taxed  throughout 
the  Union. 

4.  Such  an  arbitrary  method  of  taxing  different  States  differ- 
ently, is  a  suggestion  altogether  new,  and  would  lead,  if  practised, 
to  such  dangerous  consequences  that  it  will  require  very  powerful 
arguments  to  show  that  that  method  of  taxing  would  be  in  any 
manner  compatible  with  the  constitution,  with  which  at  present, 
I  deem  it  utterly  irreconcilable,  it  being  altogether  destructive  of 
the  notion  of  a  common  interest,  upon  which  the  very  principles 
of  the  constitution  are  founded,  so  far  as  the  condition  of  the 
United  States  will  admit. 

The  second  expedient  proposed  was,  that  of  taxing  carriages, 
among  other  things,  in  a  general  assessment.  This  amounts  to 
saying  that  congress  may  lay  a  tax  on  carriages,  but  that  they  may 
not  do  it  unless  they  blend  it  with  other  subjects  of  taxation.  For 
this,  no  reason  or  authority  has  been  given,  and  in  addition  to 
other  suggestions  offered  by  the  counsel  on  that  side,  affords  an 
irrefragable  proof,  that  when  positions  plainly  so  untenable  are 
offered  to  counteract  the  principle  contended  for  by  the  opposite 
counsel,  the  principle  itself  is  a  right  one;  for,  no  one  can  doubt, 
that  if  better  reasons  could  have  been  offered,  they  would  not 
have  escaped  the  sagacity  and  learning  of  the  gentlemen  who  of- 
fered them. 


32  CASES  ON  CONSTITUTIONAL  LAW. 

There  is  no  necessity  or  propriety  in  determining  what  is,  or  is 
not  a  direct  or  indirect  tax  in  all  cases. 

Some  difficulties  may  occur  which  we  do  not  at  present  foresee. 
Perhaps  a  direct  tax,  in  the  sense  of  the  constitution,  can  mean 
nothing  but  a  tax  on  something  inseparably  annexed  to  the  soil, 
something  capable  of  apportionment  under  all  such  circum- 
stances. 

A  land  or  a  poll  tax  may  be  considered  of  this  description. 

The  latter  is  to  be  considered  so  particularly  under  the  present 
constitution,  on  account  of  the  slaves  in  the  southern  States,  who 
give  a  ratio  in  the  representation  in  the  proportion  of  three  to  five. 

Either  of  these  is  capable  of  apportionment.  In  regard  to  other 
articles,  there  may  possibly  be  considerable  doubt. 

It  is  sufficient,  on  the  present  occasion,  for  the  court  to  be  satis- 
fied that  this  is  not  a  direct  tax  contemplated  by  the  constitution, 
in  order  to  affirm  the  present  judgment;  since,  if  it  cannot  be  ap- 
portioned, it  must  necessarily  be  uniform. 

I  am  clearly  of  opinion  this  is  not  a  direct  tax  in  the  sense  of 
the  constitution,  and,  therefore,  that  the  judgment  ought  to  be 
affirmed. 

[Wilson,  J.,  had  rendered  an  opinion  in  this  ease  in  the  Cir- 
cuit Court  of  Virginia,  and  now  merely  expressed  his  concurrence 
in  the  opinion  of  the  court.  Cushing,  J.,  not  having  heard  the 
arguments,  did  not  deliver  an  opinion.] 

By  the  Couet.  Let  the  judgment  of  the  circuit  court  be 
affirmed. 


■^McCULLOCH   V.    THE    STATE    OF   MARYLAND   ET    AL. 
4  Wheaton,  316.    Decided  1819. 

Eeeoe  to  the  court  of  appeals  of  the  State  of  Maryland.     .    .    . 

[In  April,  1816,  Congress  incorporated  the  Bank  of  the  United 
States.  In  February,  1818,  the  general  assembly  of  Maryland, 
imposed  "a  tax  on  all  banks,  or  branches  thereof,  in  the  State  of 
Maryland,  not  chartered  by  the  legislature."  McCulloch,  the  cash- 
ier of  the  branch  of  the  Bank  of  the  United  States  established  in 
the  city  of  Baltimore,  violated  the  latter  act  by  issuing  notes  upon 
unstamped  paper.  The  question  submitted  to  the  court  for  their 
decision  in  this  case  is  as  to  the  validity  of  the  said  act  of  the 


Mcculloch  v.  state  of  Maryland.  33 

general  assembly  of  Maryland,  on  the  ground  of  its  being  repug- 
nant to  the  constitution  of  the  United  States,  and  the  act  of  con- 
gress aforesaid,  or  one  of  them.] 

Maeshall,  C.  J.,  delivered  the  opinion  of  the  court. 

In  the  case  now  to  be  determined,  the  defendant,  a  sovereign 
state,  denies  the  obligation  of  a  law  enacted  by  the  legislature  of 
the  Union;  and  the  plaintiff,  on  his  part,  contests  the  validity  of 
an  act  which  has  been  passed  by  the  legislature  of  that  State.  The 
constitution  of  our  country,  in  its  most  interesting  and  vital 
parts,  is  to  be  considered;  the  conflicting  powers  of  the  govern- 
ment of  the  Union  and  of  its  members,  as  marked  in  that  consti- 
tution, are  to  be  discussed;  and  an  opinion  given,  which  may 
essentially  influence  the  great  operations  of  the  government.  No 
tribunal  can  approach  such  a  question  without  a  deep  sense  of  its 
importance,  and  of  the  awful  responsibility  involved  in  its  decision. 
But  it  must  be  decided  peacefully,  or  remain  a  source  of  hostile 
legislation,  perhaps  of  hostility  of  a  still  more  serious  nature;  and' 
if  it  is  to  be  so  decided,  by  this  tribunal  alone  can  the  decision  be 
made.  On  the  supreme  court  of  the  United  States  has  the  con- 
stitution of  our  country  devolved  this  important  duty. 

The  first  question  made  in  the  cause  is,  has  congress  power  to 
incorporate  a  bank?     .     .     . 

[This  part  of  the  opinion  is  given  infra,  page  308.] 

It  being  the  opinion  of  the  couri^  that  the  act  incorporating  the 
bank  is  constitution&i;;  «jrd,  that'  the  powbr  of  establishing  a 
branch  in  the  State  of  Marylan<J  nnght  be  properly  exercised  by 
the  bank  itself,  we, proceed  ,'tc  "inquire:— , 

^!^  Whether /the  rjta'te^^of "  Mar^dajifl  may.  without  violating  the 
coftstitution;.  tax  that  braijch.?      .  " 

That  the  power  of  taxation  is  one  of  vital  importance;  that  it  is 
retained  by  the  States;  that  it  is  not  abridged  by  the  grant  of  a 
similar  power  to  the  government  of  the  Union;  that  it  is  to  be 
concurrently  exercised  by  the  two  governments:  are  truths  which 
have  never  been  denied.  But,  such  is  the  paramount  character  of 
the  constitution,  that  its  capacity  to  withdraw  any  subject  from 
the  action  of  even  this  power,  is  admitted.  The  States  are  expressly 
forbidden  to  lay  any  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  their  inspection  laws.  If 
the  obligation  of  this  prohibition  must  be  conceded — if  it  may  re- 
strain a  State  from  the  exercise  of  its  taxing  power  on  imports  and 
exports;  the  same  paramount  character  would  seem  to  restrain,  as 
3 


34  CASES  ON  CONSTITUTIONAL  LAW. 

it  certainly  may  restrain,  a  State  from  such  other  exercise  of  this 
power,  as  is  in  its  nature  incompatible  with,  and  repugnant  to, 
the  constitutional  laws  of  the  Union.  A  law,  absolutely  repug- 
nant to  another,  as  entirely  repeals  that  other  as  if  express  terms 
of  repeal  were  used. 

On  this  ground  the  counsel  for  the  bank  place  its  claim  to  be 
exempted  from  the  power  of  a  State  to  tax  its  operations.  There 
is  no  express  provision  for  the  case,  but  the  claim  has  been  sus- 
tained on  a  principle  which  so  entirely  pervades  the  constitution, 
is  so  intermixed  with  the  materials  which  compose  it,  so  inter- 
woven with  its  web,  so  blended  with  its  texture,  as  to  be  incapable 
of  being  separated  from  it,  without  rending  it  into  shreds. 

This  great  principle  is,  that  the  constitution  and  the  laws  made 
in  pursuance  thereof  are  supreme;  that  they  control  the  consti- 
tution and  laws  of  the  respective  States,  and  cannot  be  controlled 
by  "them.  From  this,  which  may  be  almost  termed  an  axiom, 
other  propositions  are  deduced  as  corollaries,  on  the  truth  or  error 
of  which,  and  on  their  application  to  this  case,  the  cause  has  been 
supposed  to  depend.  These  are,  1.  That  a  power  to  create  implies 
a  power  to  preserve.  2.  That  a  power  to  destroy,  if  wielded  by  a 
different  hand,  is  hostile  to,  and  incompatible  with,  these  powers 
to  create  and  preserve.  3.  That  where  this  repugnancy  exists, 
that  authority  which  is  supreme  must  control,  not  yield  to  that 
over  which  it  is  supreme. 

These  propositions,  as  abstract  truths,  would,  perhaps,  never  be 
controverted.  Their  application  to  this  case,  however,  has  been 
denied;  and,  both  in^  maintaining  tae  ftlTirraative  and  the  negative, 
a  splendor  of  eloquehce,."and  strength  of  argument,  seldom,  if  ever, 
surpassed,  have  been  oisplayed.  -  ,   .        \  ,    . 

The  power  of  congress  :tp  preatej  and  of  <;d^rse  to  continue,  the 
bank,  was  the  subject  of  th«  prectiding.  part  of  this  opinion;  and 
is  no  longer  to  be  considered  as  questionable. 

That  the  power  of  taxing  it  by  the  States  may  be  exercised  so  as 
to  destroy  it,  is  too  obvious  to  be  denied.  But  taxation  is  said  to 
be  an  absolute .  power,  which  acknowledges  no  other  limits  than 
those  expressly  prescribed  in  the  constitution,  and  like  sovereign 
power  of  every  other  description,  is  trusted  to  the  discretion  of 
those  who  use  it.  But  the  very  terms  of  this  argument  admit  that 
the  sovereignty  of  the  State,  in  the  article  of  taxation  itself,  is 
subordinate  to,  and  may  be  controlled  by,  the  constitution  of  the 
United  States.  How  far  it  has  been  controlled  by  that  instrument 
must  be  a  question  of  construction.  In  making  this  construction, 
BO  principle  not  declared,  can  be  admissible,  which  would  defeat 


Mcculloch  v.  state  of  Maryland.  35 

the  legitimate  operations  of  a  supreme  government.  It  is  of  the 
very  essence  of  supremacy  to  remove  all  obstacles  to  its  action 
within  its  own  sphere,  and  so  to  modify  every  power  vested  in  sub- 
ordinate governments,  as  to  exempt  its  own  operations  from  their 
own  influence.  This  effect  need  not  be  stated  in  'terms.  It  is  so 
involved  in  the  declaration  of  supremacy,  so  necessarily  implied 
in  it,  that  the  expression  of  it  could  not  make  it  more  certain.  We 
must,  therefore,  keep  it  in  view  while  construing  the  constitution. 

The  argument  on  the  part  of  the  State  of  Maryland,  is,  not  that 
the  States  may  directly  resist  a  law  of  congress,  but  that  they  may 
exercise  their  acknowledged  powers  upon  it,  and  that  the  consti- 
tution leaves  them  this  right  in  the  confidence  that  they  will  not 
abuse  it. 

Before  we  proceed  to  examine  this  argument,  and  to  subject  it 
to  the  test  of  the  constitution,  we  must  be  permitted  to  bestow  a 
few  considerations  on  the  nature  and  extent  of  this  original  right 
of  taxation,  which  is  acknowledged  to  remain  with  the  States.  It 
is  admitted  that  the  power  of  taxing  the  people  and  their  property 
is  essential  to  the  very  existence  of  government,  and  may  be  legiti- 
mately exercised  on  the  objects  to  which  it  is  applicable,  to  the 
utmost  extent  to  which  the  government  may  choose  to  carry  it. 
The  only  security  against  the  abuse  of  this  power,  is  found  in  the 
structure  of  the  government  itself.  In  imposing  a  tax  the  legisla- 
ture acts  upon  its  constituents.  This  is  in  general  a  sufficient 
security  against  erroneous  and  oppressive  taxation. 

The  people  of  a  State,  therefore,  give  to  their  government  a 
rigKt  of  faxing  tTTemgelves' and  their  property,  and  as  the  exigencies 
of  government  canno"f'be  limifed,  they  prescribe  no  limits  to  the 
exercise  of  this  right,  resting  confidently  on  the  interest  of  the 
legislator,  and  on  the  influence  of  the  constituents  over  their  rep- 
resentatives, to  guard  them  against  its  abuse.  But  the  means 
employed  ^y  the  government  of  the  Union  have  no  such  security, 
nor  is  the  right  of  a  State  to  tax  them  sustained  by  the  same 
theory.  Those  means  are  not  given  by  the  people  of  a  particular 
State,  not  given  by  the  constituents  of  the  legislature,  which 
claim  the  right  to  tax  them,  but  by  the  people  of  all  th^- States. 
They  are  given  by  all,  for  the  benefit  of  all — and  upon  theory, 
should  be  subjected  to  that  government  only  which  belongs  to  all. 

It  may  be  objected  to  this  definition,  that  the  power  of  taxation 
is  not  confined  to  the  people  and  property  of  a  State.  It  may  be 
exercised  upon  every  object  brought  within  its  jurisdiction. 

This  is  true.  But  to  what  source  do  we  trace  this  right?  It  is 
obvious,  that  it  is  an  incident  of  sovereignty,  and  is  co-extensive 


36  CASES  ON  CONSTITUTIONAL  LAW. 

with  that  to  which  it  is  an  incident.  All  subjects  over  which  the 
sovereign  power  of  a  State  extends,  are  objects  of  taxation;  but 
those  over  which  it  does  not  extend,  are,  upon  the  soundest  prin- 
ciples, exempt  from  taxation.  This  proposition  may  almost  be  pro- 
nounced self-evident. 

i  The  sovereignty  of  a  State  extends  to  everything  which  exists 
jby  its  own  authority,  or  is  introduced  by  its  permission;  but  does 
I  it  extend  to  those  means  which  are  employed  by  congress  to  carry 
j  into  execution  powers  conferred  on-that  body  by  the  people  of  the 
•  United  States?  We  think  it  demonstrable  that  it  ^oestiot.  Those 
i  powers  are  not  given  by  the  people  of  a  single  State.  They  are 
j  given  by  the  people  of  the  United  States,  to  a  government  whose 
I  laws,  made  in  pursuance  of  the  constitution,  are  declared  to  be 
j  supreme.  Consequently,  the  people  of  a  single  State  cannot  confer 
1  a  sovereignty  which  will  extend  over  them. 

If  we  measure  the  power  of  taxation  residing  in  a  State,  by  the 
extent  of  sovereignty  which  the  people  of  a  single  State  possess, 
and  can  confer  on  its  government,  we  have  an  intelligible  stand- 
ard, applicable  to  every  case  to  which  the  power  may  be  applied. 
We  have  a  principle  which  leaves  the  power  of  taxing  the  people 
and  property  of  a  State  unimpaired;  which  leaves  to  a  State  the 
command  of  all  its  resources,  and  which  places  beyond  its  reach, 
all  those  powers  which  are  conferred  by  the  people  of  the  United 
States  on  the  government  of  the  Union,  and  all  those  means 
which  are  given  for  the  purpose  of  carrying  those  powers  into  exe- 
cution. We  have  a  principle  which  is  safe  for  the  States,  and  safe 
for  the  Union.  We  are  relieved,  as  we  ought  to  be,  from  clashing 
sovereignty;  from  interfering  powers;  from  a  repugnancy  be- 
tween a  right  in  one  government  to  pull  down  what  there  is  an 
acknowledged  right  in  another  to  build  up;  from  the  incompati- 
bility of  a  right  in  one  government  to  destroy  what  there  is  a 
right  in  another  to  preserve.  We  are  not  driven  to  the  perplexing 
inquiry,  so  unfit  for  the  judicial  department,  what  degree  of  tax- 
ation is  the  legitimate  use,  and  what  degree  may  amount  to  the 
abuse  of  the  power.  The  attempt  to  use  it  on  the  means  em- 
ployed by  the  government  of  the  Union,  in  pursuance  of  the  con- 
stitution, is  itself  an  abuse,  because  it  is  the  usurpation  of  a  power, 
which  the  people  of  a  single  State  cannot  give. 

We  find,  then,  on  just  theory,  a  total  failure  of  this  original  right 
to  tax  the  means  employed  by  the  government  of  the  Union,  for 
the  execution  of  its  powers.  The  right  never  existed,  and  the 
question  whether  it  has  been  surrendered,  cannot  arise. 

But,  waiving  this  theory  for  the  present,  let  us  resume  the  in- 


Mcculloch  v.  state  of  Maryland.  37 

quiry,  whether  this  power  can  be  exercised  by  the  respective  States, 
consistently  with  a  fair  construction  of  the  constitution? 

That  the  power  to  tax  involves  the  power  to  destroy;  that  the 
power  to  destroy  may  defeat  and  render  useless  the  power  to  cre- 
ate; that  there  is  a  plain  repugnance,  in  conferring  on  one  gov- 
ernment a  power  to  control  the  constitutional  measures  of  another, 
which  other,  with  respect  to  those  very  measures,  is  declared  to 
be  supreme  over  that  which  exerts  the  control,  are  propositions 
not  to  be  denied.  But  all  inconsistencies  are  to  be  reconciled  by 
the  magic  of  the  word  confidence.  Taxation,  it  is  said,  does  not 
necessarily  and  unavoidably  destroy.  To  carry  it  to  the  excess 
of  destruction  would  be  an  abuse,  to  presume  which,  would  banish 
that  confidence  which  is  essential  to  all  government. 

But  is  this  a  case  of  confidence?  Would  the  people  of  any  one 
State  trust  those  of  another  with  a  power  to  control  the  most 
insignificant  operations  of  their  state  government?  We  know  they 
would  not.  Why,  then,  should  we  suppose  that  the  people  of  any 
one  State  should  be  willing  to  trust  those  of  another  with  a 
power  to  control  the  operations  of  a  government  to  which  they 
have  confided  their  most  important  and  most  valuable  interests? 
In  the  legislature  of  the  Union  alone,  are  all  represented.  The 
legislature  of  the  Union  alone,  therefore,  can  be  trusted  by  the 
people  with  the  power  of  controlling  measures  which  concern  all, 
in  the  confidence  that  it  will  not  be  abused.  This,  then,  is  not  a 
case  of  confidence,  and  we  must  consider  it  as  it  really  is. 

If  we  apply  the  principle  for  which  the  State  of  Maryland  con- 
tends, to  the  constitution  generally,  we  shall  find  it  capable  of 
changing  totally  the  character  of  that  instrument.  We  shall 
find  it  capable  of  arresting  all  the  measures  of  the  government, 
and  of  prostrating  it  at  the  foot  of  the  States.  The  American 
people  have  declared  their  constitution,  and  the  laws  made  in 
pursuance  thereof,  to  be  supreme;  but  this  principle  would  trans- 
fer the  supremacy,  in  fact,  to  the  State. 

If  the  States  may  tax  one  instrument,  employed  by  the  govern- 
ment in  the  execution  of  its  powers,  they  may  tax  any  and  every 
other  instrument.  They  may  tax  the  mail;  they  may  tax  the 
mint;  they  may  tax  patent  rights;  they  may  tax  the  papers  of  the 
custom-house;  the  may  tax  judicial  process;  they  may  tax  all  the 
means  employed  by  the  government,  to  an  excess  which  would 
defeat  all  the  ends  of  government.  This  was  not  intended  by  the 
American  people.  They  did  not  design  to  make  their  govern- 
ment dependent  on  the  States. 

Gentlemen  say,  they  do  not  claim  the  right  to  extend  State 


38  CASES  ON  CONSTITUTIONAL  LAW. 

taxation  to  these  objects.  They  limit  their  pretensions  to  prop- 
erty. But  on  what  principle  is  this  distinction  made?  Those 
who  make  it  have  furnished  no  reason  for  it,  and  the  principle  for 
which  they  contend  denies  it.  They  contend  that  the  power  of 
taxation  has  no  other  limit  than  is  found  in  the  10th  section  of 
the  1st  article  of  the  constitution;  that,  with  respect  to  every- 
thing else,  the  power  of  the  States  is  supreme,  and  admits  of  no 
control.  If  this  be  true,  the  distinction  between  property  and 
other  subjects  to  which  the  power  of  taxation  is  applicable,  is 
merely  arbitrary,  and  can  never  be  sustained.  This  is  not  all. 
If  the  controlling  power  of  the  States  be  established;  if  their 
supremacy  as  to  taxation  be  acknowledged;  what  is  to  restrain  their 
exercising  this  control  in  any  shape  they  may  please  to  give  it? 
Their  sovereignty  is  not  confined  to  taxation.  That  is  not  the 
only  mode  in  which  it  might  be  displayed.  The  question  is,  in 
truth,  a  question  of  supremacy;  and  if  the  right  of  the  States  to 
tax  the  means  employed  by  the  general  government  be  conceded, 
the  declaration  that  the  constitution,  and  the  laws  made  in  pur- 
suance thereof,  shall  be  the  supreme  law  of  the  land,  is  empty 
and  unmeaning  declamation. 

In  the  course  of  the  argument,  the  Federalist  has  been  quoted; 
and  the  opinions  expressed  by  the  authors  of  that  work  have 
been  justly  supposed  to  be  entitled  to  great  respect  in  expounding 
the  constitution.  No  tribute  can  be  paid  to  them  which  exceeds 
their  merit;  but  in  applying  their  opinions  to  the  cases  which 
may  arise  in  the  progress  of  our  government,  a  right  to  judge  of 
their  correctness  must  be  retained;  and,  to  understand  the  argu- 
ment, we  must  examine  the  proposition  it  maintains,  and  the 
objections  against  which  it  is  directed.  The  subject  of  those 
numbers,  from  which  passages  have  been  cited,  is  the  unlimited 
power  of  taxation  which  is  vested  in  the  general  government.  The 
objection  to  this  unlimited  power,  which  the  argument  seeks  to 
remove,  is  stated  with  fullness  and  clearness.  It  is  "that  an  in- 
definite power  of  taxation  in  the  latter  (the  government  of  the 
Union)  might,  and  probably  would,  in  time,  deprive  the  former 
(the  government  of  the  States)  of  the  means  of  providing  for 
their  own  necessities;  and  would  subject  them  entirely  to  the  mercy 
of  the  national  legislature.  As  the  laws  of  the  Union  are  to  be- 
come the  supreme  law  of  the  land;  as  it  is  to  have  power  to 
pass  all  laws  that  may  be  necessary  for  carrying  into  execution 
the  authorities  with  which  it  is  proposed  to  vest  it;  the  national 
government  might  at  any  time  abolish  the  taxes  imposed  for 
State  objects,  upon  the  pretense  of  an  interference  with  its  own. 


Mcculloch  v.  state  of  Maryland.  39 

It  might  allege  a  necessity  for  doing  this,  in  order  to  give  effi- 
cacy to  the  national  revenues;  and  thus  all  the  resources  of  tax- 
ation might,  by  degrees,  become  the  subjects  of  federal  monopoly, 
to  the  entire  exclusion  and  destruction  of  the  state  governments." 

The  objections  to  the  constitution  which  are  noticed  in  these 
numbers,  were  to  the  undefined  power  of  the  government  to  tax, 
not  to  the  incidental  privilege  of  exempting  its  own  measures  from 
State  taxation.  The  consequences  apprehended  from  this  unde- 
fined power  were,  that  it  would  absorb  all  the  objects  of  taxation, 
"to  the  exclusion  and  destruction  of  the  state  governments."  The 
arguments  of  the  Federalist  are  intended  to  prove  the  fallacy  of 
these  apprehensions;  not  to  prove  that  the  government  was  in- 
capable of  executing  any  of  its  powers,  without  exposing  the 
means  it  employed  to  the  embarrassments  of  State  taxation.  Argu- 
ments urged  against  these  objections,  and  these  apprehensions,  are 
to  be  understood  as  relating  to  the  points  they  mean  to  prove. 
Had  the  authors  of  those  excellent  essays  been  asked,  whether  they 
contended  for  that  construction  of  the  constitution,  which  would 
place  within  the  reach  of  the  States  those  measures  which  the 
government  might  adopt  for  the  execution  of  its  powers;  no  man, 
who  has  read  their  instructive  pages,  will  hesitate  to  admit,  that 
their  answer  must  have  been  in  the  negative. 

It  has  also  been  insisted,  that,  as  the  power  of  taxation  in  the 
general  and  state  governments  is  acknowledged  to  be  concurrent, 
every  argument  which  would  sustain  the  right  of  the  general  gov- 
ernment to  tax  banks  chartered  by  the  States,  will  equally  sustain 
the  right  of  the  States  to  tax  banks  chartered  by  the  general 
government. 

.  But  the  two  cases  are  not  on  the  same  reason.  The  people  of 
all  the  States  have  created  the  general  government,  and  have  con- 
ferred upon  it  the  general  power  of  taxation.  The  people  of  all 
the  States,  and  the  States  themselves,  are  represented  in  congress, 
and,  by  their  representatives,  exercise  this  power.  When  they  tax 
the  chartered  institutions  of  the  States,  they  tax  their  constitu- 
ents; and  these  taxes  must  be  uniform.  .£iil_,w]i£tt  a  State  taxes 
the  operations  of  the  government  of  the  United  States,  it  acts 
up6n~  institutions  created,  not  by  their  own  constituents,  but  by 
people  over  whom  they  claim  no  control.  It  acts  upon  the  meas- 
ures of  a  government  created  by  others  as  well  as  themselves,  for 
the  benefit  of  others  in  common  with  themselves.  The  difference 
'Is  that  which  always  exists,  and  always  must  exist,  between  the 
action  of  the  whole  on  a  part,  and  the  action  of  a  part  on  the 
whole — ^between  the  laws  of  a  government  declaredj:^  be  supreme. 


40  CASES  ON  CONSTITUTIONAL  LAW. 

and  those  of  a  government  which,  when  in  opposition  to  those  laws, 
is  not  supreme. 

But  if  the  full  application  of  this  argument  could  be  admitted, 
it  might  bring  into  question  the  right  of  congress  to  tax  the  state 
banks,  and  could  not  prove  the  right  of  the  States  to  tax  the  Bank 
of  the  United  States. 

The  court  has  bestowed  on  this  subject  its  most  deliberate  con- 
sideration. The  result  is  a  conviction  that  the  States  have  no 
power,  by  taxation  or  otherwise,  to  retard,  impede,  burden,  or  in 
any  manner  control,  the  operations  of  the  constitutional  laws 
enacted  by  congress  to  carry  into  execution  the  powers  vested  in 
the  general  government.  This  is,  we  think,  the  unavoidable  conse- 
qlience  of  that  supremacy  which  the  constitution  has  declared. 

We  are  unanimously  of  opinion,  that  the  law  passed  by  the 
legislature  of  Maryland,  imposing  a  tax  on  the  Bank  of  the  United 
States,  is  unconstitutional  and  void. 

This  opinion  does  not  deprive  the  States  of  any  resources  which 
they  originally  possessed.  It  does  not  extend  to  a  tax  paid  by 
the  real  property  of  the  bank,  in  common  with  the  other  real 
property  within  the  State,  nor  to  a  tax  imposed  on  the  interest 
which  the  citizens  of  Maryland  may  hold  in  this  institution,  in 
common  with  other  property  of  the  same  description  throughout 
the  State.  But  this  is  a  tax  on  the.  operations  of  the  bank,  and  is, 
consequently,  a  tax  on  the  operation  of  an  instrument  employed 
by  the  government  of  the  Union  to  carry  its  powers  into  execution. 
Such  a  tax  must  be  unconstitutional. 

Judgment.  This  cause  came  on  to  be  heard  on  the  transcript 
of  the  record  of  the  court  of  appeals  of  the  State  of  Maryland, 
and  was  argued  by  counsel.  On  consideration  whereof,  it  is  the 
opinion  of  this  court  that  the  act  of  the  legislature  of  Maryland 
is  contrary  to  the  constitution  of  the  United  States,  and  void. 

Note. — "A  case  could  not  be  selected  from  the  decisions  of  the 
Supreme  Court  of  the  United  States,  superior  to  this  one  of  Mc- 
Culloch  V.  Maryland,  for  the  clear  and  satisfactory  manner  in 
which  the  supremacy  of  the  laws  of  the  Union  have  been  main- 
tained by  the  court,  and  an  undue  assertion  of  State  power  over- 
ruled and  defeated."    Kent's  Commentaries,  I.,  428. 


WESTON  ET  AL  v.  CITY  OF  CHARLESTON.  41 

WESTON  ET  AL.  v.  THE  CITY  COUNCIL  OF  CHAKLESTON. 
2  Peters,  449.    Decided  1829. 

Error  to  the  constitutional  court  of  South  Carolina.  By  an 
ordinance  of  the  city  of  Charleston,  "stock  of  the  United  States" 
was,  among  other  things,  made  taxable.  The  plaintiffs,  as  owners 
of  such  stock,  applied  to  the  court  of  common  pleas  of  the  Charles- 
ton district  for  a  prohibition  to  restrain  the  city  council  from 
taxing  that  stock,  on  the  ground  that  the  tax  would  be  incon- 
sistent with  the  constitution  of  the  United  States.  The  prohi- 
bition having  been  granted,  the  proceedings  were  removed  into 
the  constitutional  court,  where  four  of  the  seven  judges  being 
of  opinion  that  the  tax  would  be  valid,  reversed  the  order  for  a 
prohibition,  and  thereupon  this  writ  of  error  was  brought.    .    .    . 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.     .     .     . 

.  .  .  This  brings  us  to  the  main  question.  Is  the  stock 
issued  for  loans  made  to  the  government  of  the  United  States  liable 
to  be  taxed  by  States  and  corporations? 

Congress  has  power  "to  borrow  money  on  the  credit  of  the 
United  States."  The  stock  it  issues  is  the  evidence  of  a  debt 
created  by  the  exercise  of  this  power.  The  tax  in  question  is  a 
tax  upon  the  contract  subsisting  between  the  government  and  the 
individual.  It  bears  directly  upon  that  contract,  while  subsist- 
ing and  in  full  force.  The  power  operates  upon  the  contract  the 
instant  it  is  framed,  and  must  imply  a  right  to  affect  that  con- 
tract. 

If  the  States  and  corporations  throughout  the  Union,  pos- 
sess the  power  to  tax  a  contract  for  the  loan  of  money,  what  shall 
arrest  this  principle  in  its  application  to  every  other  contract? 
What  measure  can  government  adopt  which  will  not  be  exposed  to 
its  influence? 

But  it  is  unnecessary  to  pursue  this  principle  through  its  di- 
versified application  to  all  the  contracts,  and  to  the  various  op- 
erations of  government.  No  one  can  be  selected  which  is  of  more 
vital  interest  to  the  community  than  this  of  borrowing  money  on 
the  credit  of  the  United  States.  No  power  has  been  conferred  by  the 
American  people  on  their  government,  the  free  and  unburdened 
exercise  of  which  more  deeply  affects  every  member  of  our  repub- 
lic. In  war,  when  the  honor,  the  safety,  the  independence  of  the 
nation  are  to  be  defended,  when  all  its  resources  are  to  be  strained 
to  the  utmost,  credit  must  be  brought  in  aid  of  taxation,  and  the 


42  CASES  ON  CONSTITUTIONAL  LAW. 

abundant  revenue  of  peace  and  prosperity  must  be  anticipated  to 
supply  the  exigencies,  the  urgent  demands  of  the  moment.  The 
people,  for  objects  the  most  important  wliich  can  occur  in  the 
progress  of  nations,  have  empowered  their  government  to  make 
these  anticipations,  "to  borrow  money  on  the  credit  of  the  United 
States."  Can  anything  be  more  dangerous,  or  more  injurious, 
than  the  admission  of  a  principle  which  authorizes  every  State  and 
every  corporation  in  the  Union  v/hich  possesses  the  right  of  taxa- 
tion, to  burden  the  exercise  of  this  power  at  their  discretion? 

If  the  right  to  impose  the  tax  exists,  it  is  a  right  which  in  its 
nature  acknowledges  no  limits.  It  may  be  carried  to  any  extent 
within  the  jurisdiction  of  the  State  or  corporation  which  im- 
poses it,  which  the  will  of  each  State  and  corporation  may  pre- 
scribe. A  power  which  is  given  by  the  whole  American  people  for 
their  common  good,  which  is  to  be  exercised  at  the  most  critical 
periods  for  the  most  important  purposes,  on  the  free  exercise 
of  which  the  interests  certainly,  perhaps  the  liberty  of  the  whole 
may  depend;  may  be  burdened,  impeded,  if  not  arrested,  by  any 
of  the  organized  parts  of  the  confederacy. 

In  a  society  formed  like  ours,  with  one  supreme  government 
for  national  purposes,  and  numerous  staite  governments  for  other 
purposes,  in  many  respects  independent,  and  in  the  uncontrolled 
exercise  of  many  important  powers,  occasional  interferences  ought 
not  to  surprise  us.  The  power  of  taxation  is  one  of  the  most 
essential  to  a  State,  and  one  of  the  mosit  extensive  in  its  opera- 
tion. The  attempt  to  maintain  a  rule  which  shall  limit  its  exer- 
cise, is  undoubtedly  among  the  most  delicate  and  difficult  duties 
which  can  devolve  on  those  whose  province  it  is  to  expound  the 
supreme  law  of  the  land  in  its  application  to  the  cases  of  individ- 
uals. This  duty  has  more  than  once  devolved  on  this  court.  In 
the  performance  of  it  we  have  considered  it  as  a  necessary  conse- 
quence from  the  supremacy  of  the  government  of  the  whole,  that 
its  action  in  the  exercise  of  its  legitimate  powers,  should  be  free 
and  unembarrassed  by  any  conflicting  powers  in  the  possession  of 
its  parts;  that  the  powers  of  a  State  cannot  rightfully  be  so  exer- 
cised as  to  impede  and  obstruct  the  free  course  of  those  meas- 
ures which  the  government  of  the  States  imited  may  rightfully 
adopt. 

This  subject  was  brought  before  the  court  in  the  case  of  Mc- 
Culloch  V.  The  State  of  Maryland,  4  Wheaton,  316,  when  it  was 
thoroughly  argued  and  deliberately  considered.  The  question 
decided  in  that  case  bears  a  near  resemblance  to  that  which  is 
involved  in  this.     It  was  discussed  at  the  bar  in  all  its  relations. 


WESTON  ET  AL  v.  CITY  OF  CHARLESTON.  43 

and  examined  by  the  court  with  its  utmost  attention.  We  will 
not  repeat  the  reasoning  which  conducted  us  to  the  conclusion 
thus  formed,  but  that  conclusion  was  that  "all  subjects  over  which 
the  sovereign  power  of  a  State  extends,  are  objects  of  taxation; 
but  those  over  which  it  does  not  extend,  are  upon  the  soundest 
principles  exempt  from  taxation."  "The  sovereignty  of  a  State 
extends  to  everything  which  exists  by  its  own  authority,  or  is 
introduced  T}y  its  permission;"  but  not  "to  those  means  which  are 
employed  by  congress  to  cari*y  into  execution  powers  conferred  on 
that  body  by  the  people  of  the  United  States."  "The  attempt  to 
use"  the  power  of  taxation  "on  the  means  employed  by  the  gov- 
ernment of  the  Union  in  pursuance  of  the  constitution,  is  itself 
an  abuse,  because  it  is  the  usurpation  of  a  power  which  the  people 
of  a  single  State  cannot  give." 

The  court  said  in  that  case,  that  "the  States  have  no  power 
by  taxation,  or  otherwise,  to  retard,  impede,  burden,  or  in  any 
manner  control  the  operation  of  the  constitutional  laws  enacted 
by  congress,  to  carry  into  execution  the  powers  vested  in  the  gen- 
eral government." 

We  retain  the  opinions  which  were  then  expressed.  A  con- 
traot  made  by  the  government  in  the  exercise  of  its  power,  to 
borrow  money  on  the  credit  of  the  United  States,  is  undoubtedly 
independent  of  the  will  of  any  State  in  which  the  individual  who 
lends  may  reside,  and  is  undoubtedly  an  operation  essential  to 
the  important  objects  for  which  the  government  was  created.  It 
ought,  therefore,  on  the  principles  settled  in  the  case  of  McCulloch 
V.  The  State  of  Maryland,  to  be  exempt  from  state  taxation,  and 
consequently  from  being  taxed  by  corporations  deriving  their 
power  from  States. 

It  is  admitted  that  the  power  of  the  government  to  borrow 
monay  cannot  be  directly  opposed,  and  that  any  law  directly  ob- 
structing its  operation  would  be  void;  but  a  distinction  is  taken 
between  direct  opposition  and  those  measures  which  may  conse- 
quentially affect  it;  that  is,  that  a  law  prohibiting  loans  to  the 
United  States  would  be  void,  but  a  tax  on  them  to  any  amount 
is  allowable. 

It  is,  we  think,  impossible  not  to  perceive  the  intimate  con- 
nection which  exists  between  these  two  modes  of  acting  on  the 
subject. 

It  is  not  the  want  of  original  power  in  an  independent  sovereign 
State,  to  prohibit  loans  to  a  foreign  government,  which  restrains 
the  legislature  from  direct  opposition  to  those  made  by  the  United 
States.    The  restraint  is  imposed  by  our  constitution.    The  Amer- 


44  CASES  ON  CONSTITUTIONAL  LAW. 

ican  people  have  conferred  the  power  of  borrowing  money  on  their 
government,  and  by  making  that  government  supreme,  have 
shielded  its  action,  in  the  exercise  of  this  power,  from  the  action 
of  the  local  governments.  The  grant  of  the  power  is  incompatible 
with  a  restraining  or  controlling  power,  and  the  declaration  of 
supremacy  is  a  declaration  that  no  such  restraining  or  controlling 
power  shall  be  exercised. 

The  right  to  tax  the  contract  to  any  extent,  when  made,  must 
operate  upon  the  power  to  borrow  before  it  is  exercised,  and  have 
a  sensible  influence  on  the  contract.  The  extent  of  this  influence 
depends  on  the  will  of  a  distinct  government.  To  any  extent, 
however  inconsiderate,  it  is  a  burden  on  the  operations  of  govern- 
ment. It  may  be  carried  to  an  extent  which  shall  arrest  them 
entirely. 

It  is  admitted  by  the  counsel  for  the  defendants,  that  the  power 
to  tax  stock  must  aflfect  the  terms  on  which  loans  will  be  made; 
but  this  objection,  it  is  said,  has  no  more  weight  when  urged 
against  the  application  of  an  acknowledged  power  to  government 
stock,  than  if  urged  against  its  application  to  lands  sold  by  the 
United  States. 

The  distinction  is,  we  think,  apparent.  When  lands  are  sold,  no 
connection  remains  between  the  purchaser  and  the  government. 
The  lands  purchased  become  a  part  of  the  mass  of  property  in  the 
country  with  no  implied  exemption  from  common  burdens.  All 
lands  are  derived  from  the  general  or  particular  government,  and 
all  lands  are  subject  to  taxation.  Lands  sold  are  in  the  condition 
of  money  borrowed  and  repaid.  Its  liability  to  taxation  in  any 
form  it  may  then  assume  is  not  questioned.  The  connection  be- 
tween the  borrower  and  the  lender  is  dissolved.  It  is  no  burden 
on  loans,  it  is  no  impediment  to  the  power  of  borrowing,  that  the 
money,  when  repaid,  loses  its  exemption  from  taxation.  But  a  tax 
upon  debts  due  from  the  government,  stands,  we  think,  on  very  dif- 
ferent principles  from  a  tax  on  lands  which  the  government  has 
sold. 

"The  Federalist"  has  been  quoted  in  the  argument,  and  an  elo- 
quent and  well-merited  eulogy  has  been  bestowed  on  the  great 
statesman  who  is  supposed  to  be  the  author  of  the  number  from 
which  the  quotation  was  made.  This  high  authority  was  also  relied 
upon  in  the  case  of  McCulloch  v.  The  State  of  Maryland,  and  was 
considered  by  the  court.  Without  repeating  what  was  then  said, 
we  refer  to  it  as  exhibiting  our  view  of  the  sentiments  expressed 
on  this  subject  by  the  authors  of  that  work. 

It  has  been  supposed  that  a  tax  on  stock  comes  within  the 


LICENSE  TAX  CASES.  45 

exceptions  stated  in  the  case  of  McCulloch  v.  The  State  of  Mary- 
land. We  do  not  think  so.  The  bank  of  the  United  States  is  an 
instrument  essential  to  the  fiscal  operations  of  the  government, 
and  the  power  which  might  be  exercised  to  its  destruction  was 
denied.  But  property  acquired  by  that  corporation  in  a  State  was 
supposed  to  be  placed  in  the  same  condition  with  property  acquired 
by  an  individual. 

The  tax  on  government  stock  is  thought  by  this  court  to  be  a 
tax  on  the  contract,  a  tax  on  the  power  to  borrow  money  on  the 
credit  of  the  United  States,  and  consequently  to  be  repugnant 
to  the  constitution. 

We  are,  therefore,  of  opinion  that  the  Judgment  of  the  constitu- 
tional court  of  the  State  of  South  Carolina,  reversing  the  order 
made  by  the  court  of  common  pleas,  awarding  a  prohibition  to 
the  city  council  of  Charleston,  to  restrain  them  from  levying  a  tax 
imposed  on  six  and  seven  per  cent,  stock  of  the  United  States, 
under  an  ordinance  to  raise  supplies  to  the  use  of  the  city  of 
Charleston  for  the  year  1823,  is  erroneous  in  this;  that  the  said 
constitutional  court  adjudged  that  the  said  ordinance  was  not 
repugnant  to  the  constitution  of  the  United  States;  whereas,  this 
court  is  of  opinion  that  such  repugnancy  does  exist.  We  are,  there- 
fore, of  opinion  that  the  said  judgment  ought  to  be  reversed  and 
annulled,  and  the  cause  remanded  to  the  constitutional  court  for 
the  State  of  South  Carolina,  that  further  proceedings  may  be 
had  therein  according  to  law. 

[Justices  Johnson  and  Thompson  delivered  dissenting  opin- 
ions.] 


LICENSE  TAX  CASES. 
5  Wallace,  462.    Decided  1866. 

[By  the  internal  revenue  act  of  1864,  subsequently  amended, 
Congress  enacted  that  all  persons  intending  to  engage  in  certain 
occupations,  including  the  selling  of  lottery  tickets  and  the  retail- 
ing of  liquors,  should  first  obtain  a  license  from  the  United  States. 
(See  13  Stat,  at  Large,  248,  249,  252,  472,  485;  14  Id.,  113,  116, 
137,  301.) 

In  New  York  and  New  Jersey,  the  selling  of  lottery  tickets, 
and  in  Massachusetts,  the  retailing  of  liquors  (except  in  certain 
specified  cases),  were  strictly  forbidden. 


46  CASES  ON  CONSTITUTIONAL  LAW. 

In  this  condition  of  statute  law,  national  and  State,  seven  cases 
were  brought  before  the  Supreme  Court.  All  of  them  arose 
under  the  provisions  of  the-  internal  revenue  acts  relating  to 
licenses  for  selling  liquors  and  dealing  in  lotteries,  and  to  special 
taxes  on  the  latter  business. 

In  five  of  the  cases  the  general  question  was:  Can  the  defend- 
ants be  equally  convicted  upon  the  several  indictments  found 
against  them  for  not  having  complied  with  the  acts  of  Congress 
by  taking  out  and  paying  for  the  required  licenses  to  carry  on  the 
business  in  which  they  were  engaged,  such  business  being  wholly 
prohibited  by  the  laws  of  the  several  States  in  which  it  was  car- 
ried on? 

In  the  other  two  cases  the  general  question  was:  Could  the  de- 
fendants be  legally  convicted  upon  an  indictment  for  being  en- 
gaged in  a  business  on  which  a  special  tax  is  imposed  by  acts  of 
Congress,  without  having  paid  such  a  special  tax,  notwithstanding 
that  such  business  was,  and  is  wholly  prohibited  by  the  laws  of 
New  York?] 

The  Chief  Justice,  having  stated  the  case,  delivered  the  opin- 
ion of  the  court. 

In  the  argument  of  all  the  cases  here  before  the  court,  it  was 
strenuously  maintained  by  counsel  for  the  defendants  that  the 
imposition  of  penalties  for  carrying  on  any  business  prohibited  by 
State  laws,  without  payment  for  the  license  or  special  tax  required 
by  Congress,  'is  contrary  to  public  jpolicy.  .  .  .  This  court  can 
know  nothing  of  public  policy  except  from  the  Constitution  and 
the  laws,  and  the  course  of  administration  and  decision.  It  has 
no  legislative  powers.  It  cannot  amend  or  modify  any  legislative 
acts.  It  cannot  examine?  questions  as  expedient  or  inexpedient, 
as  politic  or  impolitic.  Considerations  of  that  sort  must,  in  general, 
be  addressed  to  the  legislature.  Questions  of  policy  determined 
there  are  concluded  here.    .    .    . 

We  come  now  to  examine  a  more  serious  objection  to  the  legisla- 
tion of  Congress  in  relation  to  the  dealings  in  controversy.  It  was 
argued  for  the  defendants  in  error  that  a  license  to  carry  on  a  par- 
ticular business  gives  an  authority  to  carry  it  on;  that  the  deal- 
ings in  controversy  were  parcel  of  the  internal  trade  of  the  State 
in  which  the  defendants  resided;  that  the  internal  trade  of  a  State 
is  not  subject,  in  any  respect,  to  legislation  by  Congress,  and  can 
neither  be  licensed  nor  prohibited  by  its  authority;  that  licenses 
for  such  trade,  granted  under  acts  of  Congress,  must  therefore  be 
absolutely  null  and  void;    and,  consequently,  that  penalties  for 


LICENSE  TAX  CASES.      '  47 

carrying  on  such  trade  without  such  license  could  not  be  constitu- 
tionally imposed. 

This  series  of  propositions,  and  the  conclusion  in  which  it  ter- 
minates, depends  on  the  postulate  that  a  license  necessarily  con- 
fers an  authority  to  carry  on  the  licensed  business.  But  do  the 
licenses  required  by  the  acts  of  Congress  for  selling  liquor  and  lot- 
tery tickets  confer  any  authority  whatever? 

It  is  not  doubted  that  where  Congress  possesses  constitutional 
power  to  regulate  trade  or  intercourse,  it  may  regulate  by  means  of 
licenses  as  well  as  in  other  modes;  and,  in  case  of  such  regula- 
tion, a  license  will  give  to  the  licensee  authority  to  do  whatever 
is  authorized  by  its  terms. 

Thus,  Congress  having  power  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian  tribes, 
may,  without  doubt,  provide  for  granting  coasting  licenses,  licenses 
to  pilots,  licenses  to  trade  with  the  Indians,  and  any  other  licenses 
necessary  or  proper  for  the  exercise  of  that  great  and  extensive 
power;  and  the  same  observation  is  applicable  to  every  other  power 
of  Congress,  to  the  exercise  of  which  the  granting  of  licenses  may 
be  incident.  All  such  licenses  confer  authority,  and  give  rights 
to  the  licensee. 

But  very  different  considerations  apply  to  the  internal  com- 
merce or  domestic  trade  of  the  States.  Over  this  commerce  and 
trade  Congress  has  no  power  of  regulation  nor  any  direct  control. 
This  power  belongs  exclusively  to  the  States.  No  interference 
by  Congress  with  the  business  of  citizens  transacted  within  a  State 
is  warranted  by  the  Constitution,  except  such  as  is  strictly  inci- 
dental to  the  exercise  of  powers  clearly  granted  to  the  legislature. 
The  power  to  authorize  a  business  wtthin  a  State  is  plainly  repug- 
\iant  to  the  exclusive  power  of  the  State  over  the  same  subject. 
It  is  true  that  the  power  of  Congress  to  tax  is  a  very  extensive 
power.  It  is  given  in  the  Constitution,  with  only  one  exception 
and  only  two  qualifications.  Congress  cannot  tax  exports,  and  it 
must  impose  direct  taxes  by  the  rule  of  apportionment,  and  indirect 
taxes  by  the  rule  of  uniformity.  Thus  limited,  and  thus  only, 
it  reaches  every  subject,  and  may  be  exercised  at  discretion.  But 
I  it  reaches  only  existing  subjects.  Congress  cannot  authorize  a  trade 
or  business  within  a  State  in  order  to  tax  it. 

If,  therefore,  the  licenses  under  consideration  must  be  regarded 
as  giving  authority  to  carry  on  the  branches  of  business  which 
they  license,  it  might  be  difficult,  if  not  impossible,  to  reconcile 
the  granting  of  them  with  the  Constitution. 

But  it  is  not  necessary  to  regard  these  laws  as  giving  such  author- 


48  CASES  ON  CONSTITUTIONAL  LAW. 

ity.  So  far  as  they  relate  to  trade  within  State  limits,  they  give 
none,  and  can  give  none.  They  simply  express  the  purpose  of  the 
government  not  to  interfere  by  penal  proceedings  with  the  trade 
nominally  licensed,  if  the  required  taxes  are  paid.  The  power  to 
tax  is  not  questioned,  nor  the  power  to  impose  penalties  for  non- 
payment of  taxes.  The  granting  of  a  license,  therefore,  must  be 
regarded  as  nothing  more  than  a  mere  form  of  imposing  a  tax,  and 
of  implying  nothing  except  that  the  licensefe  shall  be  subject  to  no 
penalties  under  national  law,  if  he  pays  it. 

This  construction  is  warranted  by  the  practice  of  the  govern- 
ment from  its  organization.  As  early  as  1794  retail  dealers  in 
wines  or  in  foreign  distilled  liquors  were  required  to  obtain  and 
pay  for  licenses,  and  renew  them  annually,  and  penalties  were  im- 
posed for  carrying  on  the  business  without  compliance  with  the 
law.^  In  1802  these  license-taxes  and  the  other  excise  or  internal 
taxes,  which  had  been  imposed  under  the  exigencies  of  the  time, 
being  no  longer  needed,  were  abolished.^  In  1813  revenue  from 
excise  was  again  required,  and  laws  were  enacted  for  the  licensing 
of  retail  dealers  in  foreign  merchandise,  as  well  as  to  retail  dealers 
in  wines  and  various  descriptions  of  liquors.^  These  taxes  also 
were  abolished  after  the  necessity  for  them  had  passed  away,  in 
1817.*  No  claim  was  ever  made  that  the  licenses  thus  required 
gave  authority  to  exercise  trade  or  carry  on  business  within  a  State. 
They  were  regarded  merely  as  a  convenient  mode  of  imposing  taxes 
on  several  descriptions  of  business,  and  of  ascertaining  the  par- 
ties from  whom  such  taxes  were  to  be  collected. 

With  this  course  of  legislation  in  view,  we  cannot  say  that  there 
is  anything  contrary  to  the  Constitution  in  these  provisions  of  the 
recent  or  existing  internal  revenue  acts  relating  to  licenses. 

Nor  are  we  able  to  perceive  the  force  of  the  cither  objection  made 
in  argument,  that  the  dealings  for  which  licenses  are  required  be- 
ing prohibited  by  the  laws  of  the  State,  cannot  be  taxed  by  the 
National  government.  There  would  be  great  force  in  it  if  the 
licenses  were  regarded  as  giving  authority,  for  then  there  would 
be  a  direct  conflict  between  National  and  State  legislation  on  a 
subject  which  the  Constitution  places  under  the  exclusive  con- 
trol of  the  States. 

But,  as  we  have  already  said,  these  licenses  give  no  authority. 
They  are  mere  receipts  for  taxes.  And  this  would  be.  true  had  the 
internal  revenue  act  of  1864,  like  those  of  1794  and  1813,  been 

1 1  Stat,  at  Large,  377.  3  3  Id.,  72. 

2  Id..  148.  4  Id.,  401. 


CRANDALL  v.  STATE  OF  NEVADA.  49 

silent  on  this  head.  But  it  was  not  silent.  It  expressly  provided, 
in  section  sixty-seven,  that  no  license  provided  for  in  it  should, 
if  granted,  be  construed  to  authorize  any  business  with  any  State 
or  Territory  prohibited  by  the  laws  thereof,  or  so  as  to  prevent  the 
taxation  of  the  same  business  by  the  State.  This  provision  not 
only  recognizes  the  full  control  by  the  State  of  business  carried 
on  within  their  limits,  but  extends  the  same  principle,  so  far  as 
such  business  licensed  by  the  national  government  is  concerned, 
to  the  Territories. 

There  is  nothing  hostile  or  contradictory,  therefore,  in  the  acts 
of  Congress  to  the  legislation  of  the  States.  What  the  latter  pro- 
hibits, the  former,  if  the  business  is  found  existing  notwithstand- 
ing the  prohibition,  discourages  by  taxation.  The  two  lines  of 
legislation  proceed  in  the  same  direction,  and  tend  to  the  same 
result.  It  would  be  a  judicial  anomaly,  as  singular  as  indefensi- 
ble, if  we  should  hold  a  violation  of  the  laws  of  the  State  to  be 
a  justification  for  the  violation  of  the  laws  of  the  Union. 

These  considerations  require  an  affirmative  answer  to  the  first 
general  question,  whether  the  several  defendants,  charged  with 
carrying  on  business  prohibited  by  State  laws,  without  the  licenses 
required  by  acts  of  Congress  can  be  convicted  and  condemned  to 
pay  the  penalties  imposed  by  these  acts?    ... 


CRANDALL  v.  STATE  OF  NEVADA. 

6  Wallace,  35.    Decided  1867. 
\ 

Error  to  the  Supreme  Court  of  Nevada. 

In  1865,  the  legislature  of  Nevada  enacted  that  "there  shall  be 
levied  and  collected  a  capitation  tax  of  one  dollar  upon  every  per- 
son leaving  the  State  by  any  railroad,  stage-coach,  or  other  vehicle 
engaged  or  employed  in  the  business  of  transporting  passengers 
for  hire,"  and  that  the  proprietors,  owners,  and  corporations  so 
engaged  should  pay  the  said  tax  of  one  dollar  for  each  and  every 
person  so  conveyed  or  transported  from  the  State.  For  the  pur- 
pose of  collecting  the  tax,  another  section  required  from  per- 
sons engaged  in  such  business,  or  their  agents,  a  report  every 
mouth,  under  oath,  of  the  number  of  passengers  so  transported, 
and  the  payment  of  the  tax  to  the  sheriff  or  other  proper  officer. 

With  the  statute  in  existence,  Crandall,  who  was  the  agent  of  a 
4 


50  CASES  ON  CONSTITUTIONAL  LAW. 

stage  company  engaged  in  carrying  passengers  through  the  State 
of  Nevada,  was  arrested  for  refusing  to  report  the  number  of  pas- 
sengers that  had  been  carried  by  the  coaches  of  his  company,  and 
for  refusing  to  pay  the  tax  of  one  dollar  imposed  on  each  passen- 
ger by  the  law  of  that  State.  He  pleaded  that  the  law  of  the  State 
under  which  he  was  prosecuted  was  void,  because  it  was  in  con- 
flict with  the  Constitution  of  the  United  States;  and  his  plea 
being  overruled,  the  case  came  into  the  Supreme  Court  of  the  State. 
That  court — considering  that  the  tax  laid  was  not  an  impost  on 
"exports,"  nor  an  interference  with  the  power  of  Congress  "to 
regulate  commerce  among  the  several  States" — decided  against 
the  right  thus  set  up  under  the  Federal  Constitution.  Its  judg- 
ment was  now  here  for  review.     .    .    . 

Mk.  Justice  Miller  delivered  the  opinion  of  the  court. 

Th§  question  for  the  first  time  presented  to  the  court  by  this 
record  is  one  of  importance.  The  proposition  to  be  considered 
is  the  right  of  a  State  to  levy  a  tax  upon  persons  residing  in  the 
State  who  may  wish  to  get  out  of  it,  and  upon  persons  not  residing 
in  it  who  may  have  occasion  to  pass  through  it. 

It  is  to  be  regretted  that  such  a  question  should  be  submitted 
to  our  consideration,  with  neither  brief  nor  argument  on  the 
part  of  plaintiff  in  error.  But  our  regret  is  diminished  by  the 
reflection,  that  the  principles  which  must  govern  its  determination 
have  been  the  subject  of  much  consideration  in  cases  heretofore 
decided  by  this  court. 

It  is  claimed  by  counsel  for  the  State  that  the  tax  thus  levied 
is  not  a  tax  upon  the  passenger,  but  upon  the  business  of  the 
carrier  who  transports  him. 

If  the  act  were  much  more  skillfully  drawn  to  sustain  this  hy- 
pothesis than  it  is,  we  should  be  very  reluctant  to  admit  that  any 
form  of  words,  which  had  the  effect  to  compel  every  person  travel- 
ing through  the  country  by  the  common  and  usual  modes  of  public 
conveyance  to  pay  a  specific  sum  to  the  State,  was  not  a  tax  upon 
the  right  thus  exercised.  The  statute  before  us  is  not,  however, 
embarrassed  by  any  nice  difficulties  of  this  character.  The  lan- 
guage which  we  have  just  quoted  is,  that  there  shall  be  levied  and 
collected  a  capitation  tax  upon  every  person  leaving  the  State  by 
any  railroad  or  stage-coach;  and  the  remaining  provisions  of  the 
act,  which  refer  to  this  tax,  only  provide  a  mode  of  collecting  it. 
The  officers  and  agents  of  the  railroad  companies,  and  the  proprie- 
tors of  the  stage-coaches  are  made  responsible  for  this,  and  so  be- 
come the  collectors  of  the  tax. 


CRANDALL  v.  STATE  OF  NEVADA.  51 

"We  shall  have  occasion  to  refer  hereafter  somewhat  in  detail, 
to  thfe  opinions  of  the  judges  of  this  court  in  The  Passenger  Cases/ 
in  which  there  M^ere  wide  differences  on  several  points  involved  in 
the  case  before  us.  In  the  case  from  New  York  then  under  consid- 
eration, the  statute  provided  that  the  health  commissioner  should 
be  entitled  to  demand  and  receive  from  the  master  of  every  vessel 
that  should  arrive  in  the  port  of  New  York,  from  a  foreign  port, 
one  dollar  and  fifty  cents  for  every  cabin  passenger,  and  one  dollar 
for  each  steerage  passenger,  and  from  each  coasting  vessel,  twenty- 
five  cents  for  every  person  on  board.  That  statute  does  not  use 
language  so  strong  as  the  Nevada  statute,  indicative  of  a  personal 
tax  on  the  passenger,  but  merely  taxes  the  master  of  the  vessel  ac- 
cording to  the  number  of  his  passengers;  but  the  court  held  it 
to  be  a  tax  upon  the  passenger,  and  that  the  master  was  the  agent 
of  the  State  for  its  collection.  Chief  Justice  Taney,  while  he 
differed  from  the  majority  of  the  court,  and  held  the  law  to  be 
valid,  said  of  the  tax  levied  by  the  analogous  statute  of  Massa- 
chusetts, that  "its  payment  is  the  condition  upon  which  the  State 
permits  the  alien  passenger  to  come  on  shore  and  mingle  with 
its  citizens,  and  to  reside  among  them.  It  is  demanded  of  the  cap- 
tain; and  not  from  every  separate  passenger,  for  convenience  of 
collection.  But  the  burden  evidently  falls  upon  the  passenger,  and 
he,  in  fact,  pays  it,  either  in  the  enhanced  price  of  his  passage 
or  directly  to  the  captain  before  he  is  allowed  to  embark  for  the 
voyage.  The  nature  of  the  transaction,  and  the  ordinary  course 
of  business,  show  that  this  must  be  so." 

Having  determined  that  the  statute  of  Nevada  imposes  a  tax 
upon  the  passenger  for  the  privilege  of  leaving  the  State,  or  pass- 
ing through  it  by  the  ordinary  mode  of  passenger  travel,  we  pro- 
ceed to  inquire  if  it  is  for  that  reason  in  conflict  with  the  Con- 
stitution of  the  United  States. 

In  the  argument  of  the  counsel  for  the  defendant  in  error,  and 
in  the  opinion  of  the  Supreme  Court  of  Nevada,  which  is  found 
in  the  record,  it  is  assumed  that  this  question  must  be  decided 
by  an  exclusive  reference  to  two  provisions  of  the  Constitution, 
namely:  that  which  forbids  any  State,  without  the  consent  of 
Congress,  to  lay  any  imposts  or  duties  on  imports  or  exports,  and 
that  which  confers  on  Congress  the  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States. 

The  question  as  thus  narrowed  is  not  free  from  diflBculties.  Can 
a  citizen  of  the  United  States  traveling  from  one  part  of  the  Union 

17  Howard,  283. 


53  CASES  ON  CONSTITUTIONAL  LAW. 

to  another  be  called  an  export?  It  was  insisted  in  The  Passenger 
Cases,  to  which  we  have  already  referred,  that  foreigners  coming 
to  this  country  were  imports  within  the  meaning  of  the  Constitu- 
tion, and  the  provision  of  that  instrument  that  the  migration 
or  importation  of  such  persons  as  any  of  the  States  then  existing 
should  think  proper  to  admit,  should  not  be  prohibited  prior  to 
the  year  1808,  but  that  a  tax  might  be  imposed  on  such  impor- 
tation, was  relied  on  as  showing  that  the  word  import,  applied  to 
persons  as  well  as  to  merchandise.  It  was  answered  that  this 
latter  clause  had  exclusive  reference  to  slaves,  who  were  property 
as  well  as  persons,  and  therefore  proved  nothing.  While  some 
of  the  judges  who  concurred  in  holding  those  laws  unconstitu- 
tional, gave  as  one  of  their  reasons  that  they  were  taxes  on  im- 
ports, it  is  evident  that  this  view  did  not  receive  the  assent  of  the 
majority  of  the  court.  The  application  of  this  provision  of  the 
Constitution  to  the  proposition  which  we  have  stated  in  regard 
to  the  citizen,  is  still  less  satisfactory  than  it  would  be  to  the  case 
of  foreigners  migrating  to  the  United  States. 

But  it  is  unnecessary  to  consider  this  point  further  in  the  view 
which  we  have  taken  of  the  case. 

As  regards  the  commerce  clause  of  the  Constitution,  two  prop- 
ositions are  advanced  on  behalf  of  the  defendant  in  error.  1. 
That  the  tax  imposed  by  the  State  on  passengers  is  not  a  regula- 
tion of  commerce.  2.  That  if  it  can  be  so  considered,  it  is  one 
of  the  powers  which  the  State  can  exercise,  until  Congress  has  so 
legislated  as  to  indicate  its  intention  to  exclude  State  legislation 
on  the  same  subject. 

The  proposition  that  the  power  to  regulate  commerce,  as  granted 
to  Congress  by  the  Constitution,  necessarily  excludes  the  exercise 
by  the  States  of  any  of  the  powers  thus  granted,  is  one  which 
has  been  much  considered  in  this  court,  and  the  earlier  discus- 
sions left  the  question  in  much  doubt.  As  late  as  the  January 
Term,  1849,  the  opinions  of  the  judges  in  The  Passenger  Cases 
show  that  the  question  was  considered  to  be  one  of  much  impor- 
tance in  those  cases,  and  was  even  then  unsettled,  though  previous 
decisions  of  the  court  were  relied  on  by  the  judges  themselves 
as  deciding  it  in  different  ways.  It  was  certainly,  so  far  as  those 
cases  affected  it,  left  an  open  question. 

In  the  case  of  Cooley  v.  Board  of  Wardens,^  four  years  later, 
the  same  question  came  directly  before  the  court  in  reference  to 
the   local  laws   of  the  port   of   Philadelphia   concerning  pilots. 

1 12  Howard,  299. 


CRANDALL  v.  STATE  OF  NEVADA.  53 

.  .  .  Perhaps  no  more  satisfactory  solution  has  ever  been  given 
of  this  vexed  question  than  the  one  furnished  by  the  court  in  that 
case.     .     .     . 

It  may  be  that  under  the  power  to  regulate  commerce  among 
the  States,  Congress  has  authority  to  pass  laws,  the  operation  of 
which  would  be  inconsistent  with  the  tax  imposed  by  the  State 
of  Nevada,  but  we  know  of  no  such  statute  now  in  existence. 
Inasmuch,  therefore,  as  the  tax  does  not  itself  institute  any  regu- 
lation of  commerce  of  a  national  character,  or  which  has  a  uniform 
operation  over  the  whole  country,  it  is  not  easy  to  maintain,  in 
view  of  the  principles  on  which  those  cases  are  decided,  that  it 
violates  the  clause  of  the  Federal  Constitution  which  we  have  had 
under  review. 

But  we  do  not  concede  that  the  question  before  us  is  to  be  de- 
termined by  the  two  clauses  of  the  Constitution  which  we  have 
been  examining. 

The  people  of  these  United  States  constitute  one  nation.  They 
have  a  government  in  which  all  of  them  are  deeply  interested. 
This  government  has  necessarily  a  capital  established  by  law,  where 
its  principal  operations  are  conducted.  Here  sits  its  legislature, 
composed  of  senators  and  representatives,  from  the  States  and 
from  the  people  of  the  States.  Here  resides  the  President,  direct- 
ing, through  thousands  of  agents,  the  execution  of  the  laws  over 
all  this  vast  country.  Here  is  the  seat  of  the  supreme  judicial 
power  of  the  nation,  to  which  all  its  citizens  have  a  right  to  resort 
to  claim  Justice  at  its  hands.  Here  are  the  great  executive  de- 
partments, administering  the  offices  of  the  mails,  of  the  public 
lands,  of  the  collection  and  distribution  of  the  public  revenues, 
and  of  our  foreign  relations.  These  are  all  established  and  con- 
ducted under  the  admitted  powers  of  the  Federal  government. 
That  government  has  a  right  to  call  to  this  point  any  or  all  of  its 
citizens  to  aid  in  its  service,  as  members  of  the  Congress,  of  the 
courts,  of  the  executive  departments,  and  to  fill  all  its  other 
offices;  and  this  right  cannot  be  made  to  depend  upon  the  pleas- 
ure of  a  State  over  whose  territory  they  must  pass  to  reach  the 
point  where  these  services  must  be  rendered.  The  government 
also,  has  its  offices  of  secondary  importance  in  all  other  parts  of  the 
country.  On  the  sea-coasts  and  on  the  rivers  it  has  its  ports  of 
entry.  In  the  interior  it  has  its  land  offices,  its  revenue  offices, 
and  its  sub-treasuries.  In  all  these  it  demands  the  services  of  its 
citizens,  and  is  entitled  to  bring  them  to  those  points  from  all 
quarters  of  the  nation,  and  no  power  can  exist  in  a  State  to  obstruct 


54  CASES  ON  CONSTITUTIONAL  LAW. 

this  right  that  would  not  enable  it  to  defeat  the  purposes  for  which 
the  government  was  established. 

The  Federal  power  has  a  right  to  declare  and  prosecute  wars, 
and,  as  a  necessary  incident,  to  raise  and  transport  troops  through 
and  over  the  territory  of  any  State  of  the  Union. 

If  this  right  is  dependent  in  any  sense,  however  limited,  upon 
the  pleasure  of  a  State,  the  government  itself  may  be  overthrown 
by  an  obstruction  to  its  exercise.  Much  the  largest  part  of  the 
transportation  of  troops  during  the  late  rebellion  was  by  railroads, 
and  largely  through  States  whose  people  were  hostile  to  the  Union. 
If  the  tax  levied  by  Xevada  on  railroad  passengers  had  been  the 
law  of  Tennessee,  enlarged  to  meet  the  wishes  of  her  people,  the 
treasury  of  the  United  States  could  not  have  paid  the  tax  nec- 
essary to  enable  its  armies  to  pass  through  her  territory. 

But  if  the  government  has  these  rights  on  her  own  account,  the 
citizen  also  has  correlative  rights.  He  has  the  right  to  come  to 
the  seat  of  government  to  assert  any  claim  he  may  have  upon  that 
government,  or  to  transact  any  business  he  may  have  with  it.  To 
seek  its  protection,  to  share  its  offices,  to  engage  in  administering 
its  functions.  He  has  a  right  to  free  access  to  its  sea-ports,  through 
which  all  the  operations  of  foreign  trade  and  commerce  are  con- 
ducted, to  the  sub-treasuries,  the  land  offices,  the  revenue  offices, 
and  the  courts  of  justice  in  the  several  States,  and  this  right  is 
in  its  nature  independent  of  the  will  of  any  State  over  whose  soil 
he  must  pass  in  the  exercise  of  it. 

The  views  here  advanced  are  neither  novel  nor  unsupported 
by  authority.  The  question  of  the  taxing  power  of  the  States,  as 
its  exercise  has  affected  the  functions  of  the  Federal  government, 
has  been  repeatedly  considered  by  this  court,  and  the  right  of  the 
States  in  this  mode  to  impede  or  embarrass  the  constitutional  op- 
erations of  that  government,  or  the  rights  which  its  citizens  hold 
under  it,  has  been  uniformly  denied.  .  .  .  [Here  follows  a 
discussion  of  McCulloch  v.  Md.,  4  Wheat..,  316;  Brown  v.  Md., 
12  Wheat.,  419;  Weston  v.  Charleston,  2  Pet.,  449.] 

In  all  these  eases,  the  opponents  of  the  taxes  levied  by  the  States 
were  able  to  place  their  opposition  on  no  express  provision  of  the 
Constitution,  except  in  that  of  Brown  v.  Maryland.  But  in  all  the 
other  cases,  and  in  that  case  also,  the  court  distinctly  placed  the 
invalidity  of  the  State  taxes  on  the  ground  that  they  interfered 
with  an  authority  of  the  Federal  government,  which  was  itself 
only  to  be  sustained  as  necessary  and  proper  to  the  exercise  of  some 
other  power  expressly  granted. 

In  The  Passenger  Cases,  to  which  reference  has  already  been 


CRANDALL  v.  STATE  OF  NEVADA.  55 

made.  Justice  Grier,  with  whom  Justice  Catron  concurred,  makes 
this  one  of  the  four  propositions  on  which  they  held  the  tax  void 
in  those  cases.  Judge  Wayne  expresses  his  dissent  to  Judge  Grier's 
views;  and  perhaps  this  ground  received  the  concurrence  of  more 
of  the  members  of  the  court  who  constituted  the  majority  than 
any  other.  But  the  principles  here  laid  down  may  be  found  more 
clearly  stated  in  the  dissenting  opinion  of  the  Chief  Justice  in  those 
cases,  and  with  more  direct  pertinency  to  the  case  now  before 
us  than  anywhere  else.  After  expressing  his  views  fully  in  favor 
of  the  validity  of  the  tax,  which  he  said  had  exclusive  reference 
to  foreigners,  so  far  as  those  cases  were  concerned,  he  proceeds 
to  say,  for  the  purpose  of  preventing  misapprehension,  that  so  far 
as  the  tax  affected  American  citizens  it  could  not  in  his  opinion 
be  maintained.  He  then  adds:  "Living  as  we  do  under  a  common 
government,  charged  with  the  great  concerns  of  the  whole  Union, 
every  citizen  of  the  United  States  from  the  most  remote  States 
or  territories,  is  entitled  to  free  access,  not  only  to  the  principal 
departments  established  at  Washington,  but  also  to  its  judicial 
tribunals,  and  public  offices  in  every  State  in  the  Union.  .  .  . 
For  all  the  great  purposes  for  which  the  Federal  government  was 
formed  we  are  one  people,  with  one  common  country.  We  are  all 
citizens  of  the  United  States,  and  as  members  of  the  same  com- 
munity must  have  tlie  right  to  pass  and  repass  through  every  part 
of  it  without  interruption,  as  freely  as  in  our  own  States.  And  a 
tax  imposed  by  a  State,  for  entering  its  territories  or  harbors,  is 
inconsistent  with  the  rights  which  belong  to  citizens  of  other 
States  as  members  of  the  Union,  and  with  the  objects  which  that 
Union  was  intended  to  attain.  Such  a  power  in  the  States  could 
produce  nothing  but  discord  and  mutual  irritation,  and  they  very 
clearly  do  not  possess  it." 

Although  these  remarks  are  found  in  a  dissenting  opinion,  they 
do  not  relate  to  the  matter  on  which  the  dissent  was  founded. 
They  accord  with  the  inferences  which  we  have  already  drawn  from 
the  Constitution  itself,  and  from  the  decisions  of  this  court  in 
exposition  of  that  instrument. 

Those  principles,  as  we  have  already  stated  them  in  this  opinion, 
must  govern  the  present  case.     .     .     . 

Judgment  reversed,  and  the  case  remanded  to  the  Supreme  Court 
of  the  State  of  Nevada,  with  directions  to  discharge  the  plaintiff 
in  error  from  custody. 


•56  CASES   ON  CONSTITUTIONAL  LAW. 

yEAZIE  BANK  v.  FENNO. 
8  Wallace,  533.    Decided  1869. 

On  certificate  of  division  for  the  Circuit  Court  for  Maine. 

The  Constitution  ordains  that: 

"The  Congress  shall  have  power — 

"To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts  and  provide  for  the  common  defense  and  general  welfare 
of  the  United  States;  but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States. 

"To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes. 

"To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin." 

It  also  ordains  that: 

"Direct  taxes  shall  be  apportioned  among  the  several  States 
.     .     .     according  to  their  respective  numbers." 

"No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
portion to  the  census  or  enumeration  hereinbefore  directed  to  be 
made." 

"The  powers  not  delegated  to  the  United  States  by  the  Consti- 
tution nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

With  these  provisions  in  force  as  fundamental  law,  Congress 
passed,  July  13l;h,  1866,^  an  act,  the  second  clause  of  the  9th 
section  of  which  enacts: 

"That  every  National  banking  association.  State  bank,  or  State 
banking  association,  shall  pay  a  tax  of  ten  per  centum  on  the 
amount  of  notes  of  any  person,  State  bank,  or  State  banking  asso- 
ciation, used  for  circulation  and  paid  out  by  them  after  the  1st  day 
of  August,  1866,  and  such  tax  shall  be  assessed  and  paid  in  such 
manner  as  shall  be  prescribed  by  the  commissioner  of  internal 
revenue." 

Under  this  act  a  tax  of  ten  per  cent,  was  assessed  upon  the 
Veazie  Bank,  for  its  bank  notes  issued  for  circulation,  after  the 
day  named  in  the  act. 

The  Veazie  Bank  was  a  corporation  chartered  by  the  State  of 
Maine,  with  authority  to  issue  bank  notes  for  circulation,  and 
the  notes  on  which  the  tax  imposed  by  the  act  was  collected,  were 
issued  under  this  authority.    There  was  nothing  in  the  case  show- 

1 14  Stat,  at  Large,  146. 


VEAZIE  BANK  v.   FENNO.  57 

ing  that  the  bank  sustained  any  relation  to  the  State  as  a  financial 
agent,  or  that  its  authority  to  issue  notes  was  conferred  or  exer- 
cised with  any  special  reference  to  other  than  private  interests. 

The  bank  declined  to  pay  the  tax,  alleging  it  to  be  unconstitu- 
tional, and  the  collector  of  internal  revenue,  one  Fenno,  was  pro- 
ceeding to  make  a  distraint  in  order  to  collect  it,  with  penalty 
and  costs,  when,  in  order  to  prevent  this,  the  bank  paid  it  under 
protest.  An  unsuccessful  claim  having  been  made  on  the  com- 
missioner of  internal  revenue  for  reimbursement,  suit  was  brought 
by  the  bank  against  the  collector,  in  the  court  below. 

The  case  was  presented  to  that  court  upon  an  agreed  statement 
of  facts,  and,  upon  a  prayer  for  instructions  to  the  jury,  the  judges 
found  themselves  opposed  in  opinion  on  three  questions,  the  first 
of  which — the  two  others  differing  from  it  in  form  only,  and  not 
needing  to  be  recited — was  this: 

"Whether. the  second  clause  of  the  9th  section  of  the  act  of 
Congress  of  the  13th  of  July,  1866,  under  which  the  tax  in  this 
case  was  levied  and  collected,  is  a  valid  and  constitutional  law." 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

The  necessity  of  adequate  provision  for  the  financial  exigencies 
created  by  the  late  rebellion,  suggested  to  the  administrative  and 
legislative  departments  of  the  government  important  changes  in 
the  systems  of  currency  and  taxation  which  had  hitherto  prevailed. 
These  changes,  more  or  less  distinctly  shown  in  administrative 
recommendations,  took  form  and  substance  in  legislative  acts.  We 
have  now  to  consider,  within  a  limited  range,  those  which  relate 
to  circulating  notes  and  the  taxation  of  circulation. 
\  At  the  beginning  of  the  rebellion  the  circulating  medium  con- 
sisted almost  entirely  of  bank  notes  issued  by  numerous  independ- 
ent corporations  variously  organized  under  State  legislation,  of 
various  degrees  of  credit,  and  very  unequal  resources,  administered 
often  with  great,  and  not  unfrequently,  with  little  skill,  prudence, 
and  integrity.  The  acts  of  Congress,  then  in  force,  prohibiting 
the  receipt  or  disbursement,  in  the  transactions  of  the  National 
government,  of  anything  except  gold  and  silver,  and  the  laws  of 
the  States  requiring  the  redemption  of  bank  notes  in  coin  on 
demand,  prevented  the  disappearance  of  gold  and  silver  from  cir- 
culation. There  was,  then,  no  national  currency  except  coin; 
there  was  no  generaP  regulation  of  any  other  by  National  legisla- 

2  See  the  act  of  December  27th,  the  District  of  Columbia,  10  Stat. 
1854,  to  suppress  small  notes   in      at  Large,  599. 


68  CASES   ON  CONSTITUTIONAL  LAW. 

tion;  and  no  national  taxation  was  imposed  in  any  form  on  the 
State  bank  circulation. 

The  first  act  authorizing  the  emission  of  notes  by  the  Treasury 
Department  for  circulation  was  that  of  July  17th,  1861.^  The 
notes  issued  under  this  act  were  treasury  notes,  payable  on  demand 
in  coin.  The  amount  authorized  by  it  was  $50,000,000,  and  was 
increased  by  the  act  of  February  12th,  1862^  to  $60,000,000. 

On  the  31st  of  December,  1861,  the  State  banks  suspended  specie 
payment.  Until  this  time  the  expenses  of  the  war  had  been  paid 
in  coin,  or  in  the  demand  notes  just  referred  to;  and  for  some 
time  aftenvards,  they  continued  to  be  paid  in  these  notes,  which, 
if  not  redeemed  in  coin,  were  received  as  coin  in  the  payment  of 
duties. 

Subsequently,  on  the  25th  day  of  February,  1862,*  a  new  policy 
became  necessary  in  consequence  of  the  suspension  and  of  the 
condition  of  the  country,  and  was  adopted.  The  notes  hitherto 
issued,  as  has  just  been  stated,  were  called  treasury  notes,  and 
were  payable  on  demand  in  coin.  The  act  now  passed  authorized 
the  issue  of  bills  for  circulation  under  the  name  of  United  States 
notes,  made  payable  to  bearer,  but  not  expressed  to  be  payable  on 
demand,  to  the  amount  of  $150,000,000;  and  this  amount  was  in- 
creased by  subsequent  acts  to  $450,000,000,  of  which  $50,000,000 
were  to  be  held  in  reserve,  and  only  to  be  issued  for  a  special  pur- 
pose, and  under  special  directions  as  to  the  withdrawal  from  circu- 
lation.^ These  notes,  until  after  the  close  of  the  war,  were  always 
convertible  into,  or  receivable  at  par  for  bonds  payable  in  coin, 
and  bearing  coin  interest,  at  a  rate  not  less  than  five  per  cent,  and 
the  acts  by  which  they  were  authorized,  declared  them  to  be  law- 
ful money  and  a  legal  tender. 

This  currency,  issued  directly  by  the  government  for  the  dis- 
bursement of  the  war  and  other  expenditures,  could  not,  obviously,, 
be  a  proper  object  of  taxation. 

But  on  the  25th  of  February,  1863,  the  act  authorizing  Na- 
tional banking  associations"  was  passed,  in  which,  for  the  first 
time  during  many  years.  Congress  recognized  the  expediency  and 
duty  of  imposing  a  tax  upon  currency.  By  this  act  a  tax  of  two 
per  cent  annually  was  imposed  on  the  circulation  of  the  associa- 
tions authorized  by  it.  Soon  after,  by  the  act  of  March  3d,  1863,^ 
a  similar  but  lighter  tax  of  one  per  cent  annually  was  imposed  on 

2  12  Stat,  at  Large,  259.  Act  of  March  3d,  1863.  lb.,  710. 
8  lb.,  338.  6  Act  of  Mareh  3d,  1863,  12  lb., 

*  lb.,  345.  670. 
6  Act  of  July  11th,  1862,  lb.,  532;  ^  lb.,  712. 


VEAZIE  BANK  v.   FENNO.  69 

the  circulation  of  State  banks  in  certain  proportions  to  their  cap- 
ital, and  of  two  per  cent,  on  the  excess;  and  the  tax  on  the  Na- 
tional associations  was  reduced  to  the  same  rates. 

Both  acts  also  imposed  taxes  on  capital  and  deposits,  which 
need  not  be  noticed  here. 

At  a  later  date,  by  the  act  of  June  3d,  1 864,^  which  was  substi- 
tuted for  the  act  of  February  25th,  1863,  authorizing  National 
banking  associations,  the  rate  of  tax  on  circulation  was  continued 
and  applied  to  the  whole  amount  of  it,  and  the  shares  of  their 
stockholders  were  also  subjected  to  taxation  by  the  States;  and 
a  few  days  afterwards,  by  the  act  of  June  30th,  1864,^  to  provide 
ways  and  means  for  the  support  of  the  government,  the  tax  on  the 
circulation  of  the  State  banks  was  also  continued  at  the  same 
annual  rate  of  one  per  cent.,  as  before,  but  payment  was  required 
in  monthly  installments  of  one-twelfth  of  one  per  cent.,  with 
monthly  reports  from  each  State  bank  of  the  amount  in  circulation. 

It  can  hardly  be  doubted  that  the  object  of  this  provision  was  to 
inform  the  proper  authorities  of  the  exact  amount  of  paper  money 
in  circulation,  with  a  view  to  its  regulation  by  law. 

The  first  step  taken  by  Congress  in  that  direction  was  by  the  act 
of  July  17,  1863,^"  prohibiting  the  issue  and  circulation  of  notes 
under  one  dollar  by  any  person  or  corporation.  The  act  just  re- 
ferred to  was  the  next,  and  it  was  followed  some  months  later  by 
the  act  of  March  3d,  1865,  amendatory  of  the  prior  internal  rev- 
enue acts,  the  sixth  section  of  which  provides,  "that  every  National 
banking  association.  State  bank,  or  State  banking  association,  shall 
pay  a  tax  of  ten  per  centum  on  the  amount  of  the  notes  of  any 
State  bank,  or  State  banking  association,  paid  out  by  them  after 
the  1st  day  of  July,  1866." 

Xriie  same  provision  was  re-enacted,  with  a  more  extended  appli- 
cation, on  the  13th  of  July,  1866,  in  these  words:  "Every  Na- 
tional banking  association.  State  bank,  or  State  banking  associa- 
tion, shall  pay  a  tax  of  ten  per  centum  on  the  amount  of  notes  of 
any  person.  State  bank,  or  State  banking  association  used  for  cir- 
culation, and  paid  out  by  them  after  the  first  day  of  August,  1866; 
and  such  tax  shall  be  assessed  and  paid  in  such  manner  as  shall  be 
prescribed  by  the  Commissioner  of  Internal  Eevenue."^^ 

The  constitutionality  of  this  last  provision  is  now  drawn  in  ques- 
tion, and  this  brief  statement  of  the  recent  legislation  of  Congress 

8  13  lb.,  111.  11 13  lb.,  484. 

0  lb.,  277.  12  14  lb.,  146. 

10  Act  of  March  3d,  1863,  12  lb.. 
592. 


^0  CASES  ON  CONSTITUTIONAL  LAW. 

has  been  made  for  the  purpose  of  placing  in  a  clear  light  its  scope 
and  bearing,  especially  as  developed  in  the  provisions  just  cited. 
It  will  be  seen  that  when  the  policy  of  taxing  bank  circulation 
was  first  adopted  in  1863,  Congress  was  inclined  to  discriminate 
for,  rather  than  against,  the  circulation  of  the  State  banks;  but 
that  when  the  country  had  been  sufficiently  furnished  with  a  Na- 
tional currency  by  the  issues  of  United  States  notes  and  of  National 
bank  notes,  the  discrimination  was  turned,  and  very  decidedly 
turned,  in  the  opposite  direction. 

The  general  question  now  before  us  is,  whether  or  not  the  tax  of 
ten  per  cent.,  imposed  on  State  banks  or  National  banks  paying 
out  the  notes  of  individuals  or  State  banks  used  for  circulation,  is 
repugnant  to  the  Constitution  of  the  United  States. 

In  support  of  the  position  that  the  act  of  Congress,  so  far  as  it 
provides  for  the  levy  and  collection  of  this  tax,  is  repugnant  to  the 
Constitution,  two  propositions  have  been  argued  with  much  force 
and  earnestness. 

The  first  is  that  the  tax  in  question  is  a  direct  tax,  and  has  not 
been  apportioned  among  the  States  agreeably  to  the  Constitution. 

The  second  is  that  the  act  imposing  the  tax  impairs  a  franchise 
granted  by  the  State,  and  that  Congress  has  no  power  to  pass  any 
law  with  that  intent  or  effect. 

The  first  of  these  propositions  will  be  first  examined.     .     .     . 

Much  diversity  of  opinion  has  always  prevailed  upon  the  ques- 
tion, what  are  direct  taxes?  Attempts  to  answer  it  by  reference  to 
the  definitions  of  political  economists  have  been  frequently  made, 
but  without  satisfactory  results.  The  enumeration  of  the  different 
kinds  of  taxes  which  Congress  was  authorized  to  impose  was  proba- 
bly made  with  little  reference  to  their  speculations.  .  .  .  We 
are  obliged  therefore  to  resort  to  historical  evidence,  and  to  seek 
the  meaning  of  the  words  in  the  use  and  in  the  opinion  of  those 
whose  relations  to  the  government,  and  means  of  knowledge,  war- 
ranted them  in  speaking  with  authority.  And  considered  in  this 
light,  the  meaning  and  application  of  the  rule,  as  to  direct  taxes, 
appears  to  us  quite  clear.  It  is,  as  we  think,  distinctly  shown  in 
every  act  of  Congress  on  the  subject. 

In  each  of  these  acts,  a  gross  sum  was  laid  upon  the  United 
States,  and  the  total  amount  was  apportioned  to  the  several  States, 
according  to  their  respective  numbers  of  inhabitants,  as  ascertained 
by  the  last  preceding  census.  Having  been  apportioned,  pro- 
vision was  made  for  the  imposition  of  the  tax  upon  the  subjects 
specified  in  the  act,  fixing  its  total  sum.  .  .  .  In  each  instance, 
the  total  sum  was  apportioned  among  the  States,  by  the  constitu- 


VEAZIE  BANK  v.   FENNO.  61 

tional  rule,  and  was  assessed  at  prescribed  rates,  on  the  subjects  of 
the  tax.  These  subjects,  in  1798,^  1813,2  iglS,^  1816,*  were  lands, 
improvements,  dwelling-houses,  and  slaves;  and  in  1861,  lands, 
improvements,  and  dwelling-houses  only.  Under  the  act  of  1798, 
slaves  were  assessed  at  fifty  cents  on  each;  under  the  other  acts, 
according  to  valuation  by  assessors.  This  review  shows  that  per- 
sonal property,  contracts,  occupations,  and  the  like,  have  never 
been  regarded  by  Congress  as  proper  subjects  of  direct  tax.    .    .    . 

[After  a  discussion  of  Hylton  v.  TJ.  S.,  the  court  continues:] 

It  may  be  safely  assumed,  therefore,  as  the  unanimous  judgment 
of  the  court,  that  a  tax  on  carriages  is  not  a  direct  tax.  And  it 
may  further  be  taken  as  established  upon  the  testimony  of  Pater- 
son,  that  the  words  direct  taxes,  as  used  in  the  Constitution,  com- 
prehended only  capitation  taxes,  and  taxes  on  land,  and  perhaps 
taxes  on  personal  property  by  general  valuation  and  assessment  of 
the  various  descriptions  possessed  within  the  several  States. 

It  follows  necessarily  that  the  power  to  tax  without  apportion- 
ment extends  to  all  other  objects.  Taxes  on  other  objects  are  in- 
cluded under  the  heads  of  taxes  not  direct,  duties,  imposts,  and 
excises,  and  must  be  laid  and  collected  by  the  rule  of  uniformity. 
The  tax  under  consideration  is  a  tax  on  bank  circulation,  and  may 
very  well  be  classed  under  the  head  of  duties.  Certainly  it  is  not, 
in  the  sense  of  the  Constitution,  a  direct  tax.  It  may  be  said  to 
come  within  the  same  category  of  taxation  as  the  tax  on  incomes 
of  insurance  companies,  which  this  court,  at  the  last  term,  in  the 
case  of  Pacific  Insurance  Company  v.  Soule,'^  held  not  to  be  a 
direct  tax. 

Is  it,  then,  a  tax  on  a  franchise  granted  by  a  State,  which  Con- 
gress, upon  any  principle  exempting  the  reserved  powers  of  the 
States  from  impairment  by  taxation,  must  be  held  to  have  no 
authority  to  lay  and  collect?  We  do  not  say  that  there  may  not 
be  such  a  tax.  It  may  be  admitted  that  the  reserved  rights  of 
the  States,  such  as  the  right  to  pass  laws,  to  give  effect  to  laws 
through  executive  action,  to  administer  justice  through  the 
courts,  and  to  employ  all  necessary  agencies  for  legitimate  pur- 
poses of  State  government,  are  not  proper  subjects  of  the  taxing 
power  of  Congress.  But  it  cannot  be  admitted  that  franchises 
granted  by  a  State  are  necessarily  exempt  from  taxation;  for 
franchises  are  property,  often  very  valuable  and  productive  prop- 

1  Act  of  July  9th,  1798,  1  Stat,  at  »  Id.,  166. 

Large,  586.  ■»  Id.,  255. 

2  Act  of  July  22d,  1813,  3  lb.,  26.  s  7  Wallace,  434. 


62  CASES   ON   CONSTITUTIONAL   LAW. 

erty;  and  when  not  conferred  for  the  purpose  of  giving  effect  to 
some  reserved  power  of  a  State,  seem  to  be  as  properly  objects  of 
taxation  as  any  other  property. 

But  in  the  case  before  us  the  object  of  taxation  is  not  the  fran- 
chise of  the  bank,  but  property  created,  or  contracts  made  and 
issued  under  the  franchise,  or  power  to  issue  bank  bills.  A  railroad 
company,  in  the  exercise  of  its  corporate  franchises,  issues  freight 
receipts,  bills  of  lading,  and  passenger  tickets;  and  it  cannot  be 
doubted  that  the  organization  of  railroads  is  quite  as  important  to 
the  State  as  the  organization  of  banks.  But  it  will  hardly  be  ques- 
tioned that  these  contracts  of  the  company  are  objects  of  taxation 
within  the  powers  of  Congress,  and  not  exempted  by  any  relation 
to  the  State  which  granted  the  charter  of  the  railroad.  x\nd  it 
seems  difficult  to  distinguish  the  taxation  of  notes  issued  for  cir- 
culation from  the  taxation  of  these  railroad  contracts.  Both  de- 
scriptions of  contracts  are  means  of  profit  to  the  corporations 
which  issue  them;  and  both,  as  we  think,  may  properly  be  made 
contributory  to  the  public  revenue. 

It  is  insisted,  however,  that  the  tax  in  the  case  before  us  is  ex- 
cessive, and  so  excessive  as  to  indicate  a  purpose  on  the  part  of 
Congress  to  destroy  the  franchise  of  the  bank,  and  is,  therefore, 
beyond  the  constitutional  power  of  Congress. 

The  first  answer  to  this  is  that  the  judicial  cannot  prescribe  to 
the  legislative  department  of  the  government  limitations  upon 
the  exercise  of  its  acknowledged  powers.  The  power  to  tax  may 
be  exercised  oppressively  upon  persons,  but  the  responsibility  of 
the  legislature  is  not  to  the  courts,  but  to  the  people  by  whom  its 
members  are  elected.  So  if  a  particular  tax  bears  heavily  upon  a 
corporation,  or  a  class  of  corporations,  it  cannot,  for  that  reason 
only,  be  pronounced  contrary  to  the  Constitution. 

But  there  is  another  answer  which  vindicates  equally  the  wisdom 
and  the  power  of  Congress. 

It  cannot  be  doubted  that  under  the  Constitution  the  power  to 
provide  a  circulation  of  coin  is  given  to  Congress.  And  it  is  set- 
tled by  the  uniform  practice  of  the  government  and  by  repeated 
decisions,  that  Congress  may  constitutionally  authorize  the  emis- 
sion of  bills  of  credit.  It  is  not  important  here,  to  decide  whether 
the  quality  of  legal  tender,  in  payment  of  debts,  can  be  constitu- 
tionally imparted  to  these  bills;  it  is  enough  to  say,  that  there  can 
be  no  question  of  the  power  of  the  government  to  emit  them;  to 
make  them  receivable  in  payment  of  debts  to  itself;  to  fit  them  for 
use  by  those  who  see  fit  to  use  them  in  all  the  transactions  of  com- 
merce; to  provide  for  their  redemption;  to  make  them  a  currency. 


YBAZIE  BANK  v.  FENNO.  63 

tiniform  in  value  and  description,  and  convenient  and  useful  for 
circulation.  These  powers,  until  recently,  were  only  partially  and 
occasionally  exercised.  Lately,  however,  they  have  been  called 
into  full  activity,  and  Congress  has  undertaken  to  supply  a  cur- 
rency for  the  entire  country. 

The  methods  adopted  for  the  supply  of  this  currency  were  briefly 
explained  in  the  first  part  of  this  opinion.  It  now  consists  of  coin, 
of  United  States  notes,  and  of  the  notes  of  the  National  banks. 
Both  descriptions  of  notes  may  be  properly  described  as  bills  of 
credit,  for  both  are  furnished  by  the  government;  both  are  issued 
on  the  credit  of  the  government;  and  the  government  is  responsi- 
ble for  the  redemption  of  both;  primarily  as  to  the  first  descrip- 
tion, and  immediately  upon  default  of  the  bank,  as  to  the  second. 
When  these  bills  shall  be  made  convertible  into-  coin,  at  the  will 
of  the  holder,  this  currency  will,  perhaps,  satisfy  the  wants  of  the 
community,  in  respect  to  a  circulating  medium,  as  perfectly  as 
any  mixed  currency  that  can  be  devised. 

Having  thus,  in  the  exercise  of  undisputed  constitutional  powers, 
undertaken  to  provide  a  currency  for  the  whole  country,  it  cannot 
be  questioned  that  Congress  may,  constitutionally,  secure  the  ben- 
efit of  it  to  the  people  by  appropriate  legislation.  To  this  end.  Con- 
gress has  denied  the  quality  of  legal  tender  to  foreign  coins,  and 
has  provided  by  law  against  the  imposition  of  counterfeit  and  base 
coin  on  the  community.  To  the  same  end.  Congress  may  restrain, 
by  suitable  enactments,  the  circulation  as  money  of  any  notes  not 
issued  under  its  own  authority.  Without  this  power,  indeed,  its 
attempts  to  secure  a  sound  and  uniform  currency  for  the  country 
must  be  futile. 

Viewed  in  this  light,  as  well  as  in  the  other  light  of  a  duty  on 
contracts  or  property,  we  cannot  doubt  the  constitutionality  of 
the  tax  under  consideration.  The  three  questions  certified  from 
the  Circuit  Court  of  the  District  of  Maine  must,  therefore,  be  an- 
swered Affirm  ativeli/. 

[Me  Justice  Nelson  rendered  a  dissenting  opinion,  in  which 
Justice  Davis  concurred.] 


64  CASES  ON  CONSTITUTIONAL  LAW. 

THE   COLLECTOR  v.  DAY. 
11  Wallace,  113.    Decided    1870. 
Eebob  to  the  Circuit  Court  for  the  District  of  Massachusetts. 

[The  case  grew  out  of  an  attempt  of  a  collector  of  the  internal 
revenue  of  the  United  States  to  collect  a  tax  on  the  salary  of  a 
judge  of  the  State  of  Massachusetts  levied  in  accordance  with 
certain  acts  of  Congress  passed  in  1864,  '65,  '66,  and  '67.] 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court. 

The  case  presents  the  question  whether  or  not  it  is  competent 
for  Congress,  under  the  Constitution  of  the  United  States,  to  im- 
pose a  tax  upon  the  salary  of  a  judicial  officer  of  a  State? 

In  Dobbins  v.  The  Commissioners  of  Erie  County,^  it  was  de- 
cided that  it  was  not  competent  for  the  legislature  of  a  State  to 
levy  a  tax  upon  the  salary  or  emoluments  of  an  officer  of  the 
United  States.  The  decision  was  placed  mainly  upon  the  ground 
that  the  officer  was  a  means  or  instrumentality  employed  for  carry- 
ing into  effect  some  of  the  legitimate  powers  of  the  government, 
which  could  not  be  interfered  with  by  taxation  or  otherwise  by  the 
States,  and  that  the  salary  or  compensation  for  the  service  of  the 
officer  was  inseparably  connected  with  the  office;  that  if  the  officer, 
as  such  was  exempt,  the  salary  assigned  for  his  support  or  main- 
tenance while  holding  the  office  was  also,  for  like  reasons,  equally 
exempt. 

The  cases  of  McCulloch  v.  Maryland,^  and  Weston  v.  Charles- 
ton,^ were  referred  to  as  settling  the  principle  that  governed  the 
case,  namely,  "that  the  State  governments  cannot  lay  a  tax  upon 
the  constitutional  means  employed  by  the  government  of  the  Union 
to  execute  its  constitutional  powers."  .  .  .  [Here  follow  cita- 
tions from  these  cases.] 

It  is  conceded  in  the  case  of  McCulloch  v.  Maryland,  that  the 
power  of  taxation  by  the  States  was  not  abridged  by  the  grant  of  a 
similar  power  to  the  government  of  the  Union;  that  it  was  re- 
tained by  the  States,  and  that  the  power  is  to  be  concurrently 
exercised  by  the  two  governments;  and  also  that  there  is  no  ex- 
press constitutional  prohibition  upon  the  States  against  taxing  the 
means  or  instrumentalities  of  the  general  government.    But  it  was 

1 16  Peters,  435.  s  2  Peters,  449. 

2  4  Wheaton,  316. 


THE   COLLECTOR  v.   DAY.  65 

held,  and  we  agree  properly  held,  to  be  prohibited  by  necessary 
implication;  otherwise,  the  States  might  impose  taxation  to  an 
extent  that  would  impair,  if  not  wholly  defeat,  the  operations  of 
the  Federal  authorities  when  acting  in  their  appropriate  sphere. 

These  views,  we  think,  abundantly  establish  the  soundness  of 
the  decision  of  the  case  of  Dobbins  v.  The  Commissioners  of  Erie, 
which  determined  that  the  States  were  prohibited,  upon  a  proper 
construction  of  the  Constitution,  from  taxing  the  salary  or  emolu- 
ments of  an  officer  of  the  government  of  the  United  States.  And 
we  shall  now  proceed  to  show  that,  upon  the  same  construction  of 
that  instrument,  and  for  like  reasons,  that  government  is  prohib- 
ited from  taxing  the  salary  of  the  judicial  officer  of  a  State. 

It  is  a  familiar  rule  of  construction  of  the  Constitution  of  the 
Union,  that  the  sovereign  powers  vested  in  the  State  governments 
by  their  respective  constitutions  remained  unaltered  and  unim- 
paired, except  so  far  as  they  were  granted  to  the  government  of  the 
United  States.  That  the  intention  of  the  framers  of  the  Consti- 
tution in  this  respect  might  not  be  misunderstood,  this  rule  of 
interpretation  is  expressly  declared  in  the  Tenth  Article  of  the 
amendments,  namely:  "The  powers  not  delegated  to  the  United 
States  are  reserved  to  the  States  respectively,  or,  to  the  people." 
The  government  of  the  United  States,  therefore,  can  claim  no 
powers  which  are  not  granted  to  it  by  the  Constitution,  and  the 
powers  actually  granted  must  be  such  as  are  expressly  given,  or 
given  by  necessary  implication. 

The  general  government,  and  the  States,  although  both  exist 
within  the  same  territorial  limits,  are  separate  and  distinct  sover- 
eignties, acting  separately  and  independently  of  each  other,  within 
their  respective  spheres.  The  former  in  its  appropriate  sphere  is 
supreme;  but  the  States  within  the  limits  of  their  powers  not 
granted,  or,  in  the  language  of  the  Tenth  Amendment,  "reserved," 
are  as  independent  of  the  general  government  as  that  government 
within  its  sphere  is  independent  of  the  States. 

The  relations  existing  between  the  two  governments  are  well 
stated  by  the  present  Chief  Justice  in  the  case  of  Lane  County  v. 
Oregon,  7  Wallace,  76.  "Both  the  States  and  the  United  States," 
he  observed,  "existed  before  the  Constitution.  The  people, 
through  that  instrument,  established  a  more  perfect  union,  by 
substituting  a  national  government,  acting  with  ample  powers  di- 
rectly upon  the  citizens,  instead  of  the  Confederate  government, 
which  acted  with  powers  greatly  restricted,  only  upon  the  States. 
But,  in  many  of  the  articles  of  the  Constitution,  the  necessary 
existence  of  the  States,  and  within  their  proper  spheres,  the  inde- 
5 


66  CASES  ON  CONSTITUTIONAL   LAW. 

pendent  authority  of  the  States,  are  distinctly  recognized.  To 
them  nearly  the  whole  charge  of  interior  regulation  is  committed 
or  left;  to  them,  and  to  the  people,  all  powers,  not  expressly  dele- 
gated to  the  national  government,  are  reserved."  Upon  looking 
into  the  Constitution,  it  will  be  found  that  but  few  of  the  articles 
in  that  instrument  could  be  carried  into  practical  effect  without 
the  existence  of  the  States, 

Two  of  the  great  departments  of  the  government,  the  executive 
and  legislative,  depend  upon  the  exercise  of  the  powers,  or  upon 
the  people  of  the  States.  The  Constitution  guarantees  to  the 
States  a  republican  form  of  government,  and  protects  each  against 
invasion  or  domestic  violence.  Such  being  the  separate  and  inde- 
pendent condition  of  the  States  in  our  complex  system,  as  recog- 
nized by  the  Constitution,  and  the  existence  of  which  is  so  indis- 
pensable, that,  without  them,  the  general  government  itself  would 
disappear  from  the  family  of  nations,  it  would  seem  to  follow,  as 
a  reasonable,  if  not  a  necessary  consequence,  that  the  means  and 
instrumentalities  employed  for  carrying  on  the  operations  of  their 
governments,  for  preserving  their  existence,  and  fulfilling  the  high 
and  responsible  duties  assigned  to  them  in  the  Constitution,  should 
be  left  free  and  unimpaired,  should  not  be  liable  to  be  crippled, 
much  less  defeated,  by  the  taxing  power  of  another  government, 
which  power  acknowledges  no  limits  but  the  will  of  the  legislative 
body  imposing  the  tax.  And,  more  especially,  those  means  and 
Instrumentalities  which  are  the  creation  of  their  sovereign  and  re- 
served rights,  one  of  which  is  the  establishment  of  the  judicial 
department,  and  the  appointment  of  otficers  to  administer  their 
laws.  Without  this  power,  and  the  exercise  of  it,  we  risk  nothing 
in  saying  that  no  one  of  the  States  under  the  form  of  government 
guaranteed  by  the  Constitution  could  long  preserve  its  existence. 
A  despotic  government  might.  We  have  said  that  one  of  the 
reserved  powers  was  that  to  establish  a  judicial  department;  it 
would  have  been  more  accurate,  and  in  accordance  with  the  exist- 
ing state  of  things  at  the  time,  to  have  said  the  power  to  maintain 
a  judicial  department.  All  of  the  thirteen  States  were  in  the  pos- 
session of  this  power,  and  had  exercised  it  at  the  adoption  of  the 
Constitution;  and  it  is  not  pretended  that  any  grant  of  it  to  the 
general  government  is  found  in  that  instrument.  It  is,  therefore, 
one  of  the  sovereign  powers  vested  in  the  States  by  their  constitu- 
tions, which  remained  unaltered  and  unimpaired,  and  in  respect 
to  which  the  State  is  as  independent  of  the  general  government 
as  that  government  is  independent  of  the  States. 

The  supremacy  of  the  general  government,  therefore,  so  much 


THE   COLLECTOR  v.   DAY.  67 

relied  on  in  the  argument  of  the  counsel  for  the  plaintiff  in  error, 
in  respect  to  the  question  before  us,  cannot  be  maintained.  The 
two  governments  are  upon  an  equality,  and  the  question  is  whether 
the  power  "to  lay  and  collect  taxes"  enables  the  general  govern- 
ment to  tax  the  salary  of  a  judicial  officer  of  the  State,  which 
officer  is  a  means  or  instrumentality  employed  to  carry  into  exe- 
cution one  of  its  most  important  functions,  the  administration  of 
the  laws,  and  which  concerns  the  exercise  of  a  right  reserved  to  the 
States? 

We  do  not  say  the  mere  circumstance  of  the  establishment  of 
the  judicial  department,  and  the  appointment  of  officers  to  admin- 
ister the  laws,  being  among  the  reserved  powers  of  the  State,  dis- 
ables the  general  government  from  levying  the  tax,  as  that  de- 
pends upon  the  express  power  "to  lay  and  collect  taxes,"  but  it 
shows  that  it  is  an  original  inherent  power  never  parted  with,  and, 
in  respect  to  which,  the  supremacy  of  that  government  does  not 
exist,  and  is  of  no  importance  in  determining  the  question;  and 
further,  that  being  an  original  and  reserved  power,  and  the  judicial 
officers  appointed  under  it  being  a  means  or  instrumentality 
employed  to  carry  it  into  effect,  the  right  and  necessity  of  its  unim- 
paired exercise,  and  the  exemption  of  the  officer  from  taxation  by 
the  general  government  stand  upon  as  solid  a  ground,  and  are 
maintained  by  principles  and  reasons  as  cogent,  as  those  which  led 
to  the  exemption  of  the  Federal  officer  in  Dobbins  v.  The  Com- 
misisoners  of  Erie  from  taxation  by  the  State;  for,  in  this  respect, 
that  is,  in  respect  to  the  reserved  powers,  the  State  is  as  sovereign 
and  independent  as  the  general  government.  And  if  the  means 
and  instrumentalities  employed  by  that  government  to  carry  into 
operation  the  powers  granted  to  it  are,  necessarily,  and,  for  the 
sake  of  self-preservation,  exempt  from  taxation  by  the  States,  why 
are  not  those  of  the  States  depending  upon  their  reserved  powers, 
for  like  reasons,  equally  exempt  from  Federal  taxation?  Their 
unimpaired  existence  in  the  one  case  is  as  essential  as  in  the  other. 
It  is  admitted  that  there  is  no  express  provision  in  the  Constitu- 
tion that  prohibits  the  general  government  from  taxing  the  means 
and  instrumentalities  of  the  States,  nor  is  there  any  prohibiting 
the  States  from  taxing  the  means  and  instrumentalities  of  that 
government.  In  both  cases  the  exemption  rests  upon  necessary 
implication,  and  is  upheld  by  the  great  law  of  self-preservation; 
as  any  government,  whose  means  employed  in  conducting  its 
operations,  if  subject  to  the  control  of  another  and  distinct  gov- 
ernment can  exist  only  at  the  mercy  of  that  government.  Of  what 
avail  are  these  means  if  another  power  may  tax  them  at  discretion? 


68  CASES   ON   CONSTITUTIONAL  LAW. 

But  we  are  referred  to  the  Veazie  Bank  v.  Fenno,  8  Wallace,  533, 
in  support  of  this  power  of  taxation.  That  case  furnishes  a  strong 
illustration  of  the  position  taken  by  the  Chief  Justice  in  McCulloch 
V.  Maryland,  namely,  "That  the  power  to  tax  involves  the  power 
to  destroy." 

'    The  power  involved  was  one  which  had  been  exercised  by  the 
States  since  the  foundation  of  the  government,  and  had  been,  after 
the  lapse  of  three-quarters  of  a  century,  annihilated  from  excessive 
taxation  by  the  general  government,  just  as  the  judicial  office  in 
;  the  present  case  might  be,  if  subject  at  all  to  taxation  by  that  gov- 
!  ernment.     But,  notwithstanding  the  sanction  of  this  taxation  by 
a  majority  of  the  court,  it  is  conceded,  in  the  opinion,  that  "the 
i  reserved  rights  of  the  States,  such  as  the  right  to  pass  laws;   to 
;  give  effect  to  laws  through  executive  action;  to  administer  justice 
through  the  courts,  and  to  employ  all  necessary  agencies  for  legiti- 
:  mate  purposes  of  State  government,  are  not  proper  subjects  of  the 
taxing  power  of  Congress."     This  concession  covers  the  case  be- 
fore us,  and  adds  the  authority  of  this  court  in  support  of  the  doc- 
trine which  we  have  endeavored  to  maintain. 

Judgment  affirmed. 
Mb.  Justice  Bradley,  dissenting. 

I  dissent  from  the  opinion  of  the  court  in  this  case,  because  it 
seems  to  me  that  the  general  government  has  the  same  power  of 
taxing  the  income  of  officers  of  the  State  governments  as  it  has 
of  taxing  that  of  its  own  officers.  It  is  the  common  government  of 
all  alike;  and  every  citizen  is  presumed  to  trust  his  own  govern- 
ment in  the  matter  of  taxation.  No  man  ceases  to  be  a  citizen  of 
the  United  States  by  being  an  officer  under  the  State  government. 
I  cannot  accede  to  the  doctrine  that  the  general  government  is  to 
be  regarded  as  in  any  sense  foreign  or  antagonistic  to  the  State 
governments,  their  officers,  or  people;  nor  can  I  agree  that  a  pre- 
sumption can  be  admitted  that  the  general  government  will  act 
in  a  manner  hostile  to  the  existence  or  functions  of  the  State  gov- 
ernments, which  are  constituent  parts  of  the  system  or  body  politic 
forming  the  basis  on  which  the  general  government  is  founded. 
The  taxation  by  the  State  governments  of  the  instruments  em- 
ployed by  the  general  government  in  the  exercise  of  its  powers,  is 
a  very  different  thing.  Such  taxation  involves  an  interference 
with  the  powers  of  a  government  in  which  other  States  and  their 
citizens  are  equally  interested  with  the  State  which  imposes  the 
taxation.  In  my  judgment,  the  limitation  of  the  power  of  taxation 
in  the  general  government,  which  the  present  decision  establishes, 
will  be  found  very  difficult  to  control.    Where  are  we  to  stop  in 


STATE  TONNAGE  TAX  CASES  69 

enumerating  the  functions  of  the  State  governments  which  will  be 
interfered  with  by  Federal  taxation?  If  a  State  incorporate  a 
railroad  to  carry  out  its  purposes  of  internal  improvement,  or  a 
bank  to  aid  its  financial  arrangements,  reserving,  perhaps,  a  per- 
centage on  the  stock  or  profits,  for  the  supply  of  its  own  treasury, 
will  the  bonds  or  stock  of  such  an  institution  be  free  from  Federal 
taxation?  How  can  we  now  tell  what  the  effect  of  this  decision 
will  be?  I  cannot  but  regard  it  as  founded  on  a  fallacy,  and  that 
it  will  lead  to  mischievous  consequences.  I  am  as  much  opposed 
as  any  one  can  be  to  any  interference  by  the  general  government 
with  the  just  powers  of  the  State  governments.  But  no  concession 
of  any  of  the  just  powers  of  the  general  government  can  easily  be 
recalled.  I,  therefore,  consider  it  my  duty  to  at  least  record  my 
dissent  when  such  concession  appears  to  be  made.  An  extended 
discussion  of  the  subject  would  answer  no  useful  purpose. 


STATE   TONNAGE    TAX   CASES. 
12  Wallace,  204.    Decided  1870. 

Error  to  the  Supreme  Court  of  Alabama. 

These  were  two  cases,  which,  though  coming  in  different  forms, 
involved  one  and  the  same  point  only;  and  at  the  bar — where  the 
counsel  directed  attention  to  the  principle  involved,  separated 
from  the  accidents  of  the  case — were  discussed  together  as  pre- 
senting "precisely  the  same  question."  The  matter  was  thus: — 
\The  Constitution  ordains  that  "no  State  shall  without  the  con- 
sent of  Congress  lay  any  duty  of  tonnage."  With  this  provision  in 
force  as  superior  law,  the  State  of  Alabama  passed,  on  the  22d  of 
February,  1866,  a  revenue  law.  By  this  law,  the  rate  of  taxation 
for  property  generally  was  the  one-half  of  one  per  cent;  but  "on 
all  steamboats,  vessels,  and  other  water  crafts  plying  in  the  naviga- 
ble waters  of  the  State,"  the  act  levied  a  tax  at  "the  rate  of  $1  per 
ton  of  the  registered  tonnage  thereof,"  which  it  declared  should 
"be  assessed  and  collected  at  the  port  where  such  vessels  are  regis- 
tered, if  practicable;  otherwise  at  any  other  port  or  landing  within 
the  State  where  such  vessel  may  be." 

The  tax  collector  was  directed  by  the  act  to  demand,  in  each  year, 
of  the  person  in  charge  of  the  vessel,  if  the  taxes  had  been  paid. 
If  a  receipt  for  the  same  was  not  produced,  he  was  to  immediately 


70  CASES  ON  CONSTITUTIONAL  LAW. 

assess  the  same  according  to  tonnage,  and  if  such  tax  was  not  paid 
on  demand  he  was  to  seize  the  boat,  &c.,  and,  after  notice,  proceed 
and  sell  the  same  for  payment  of  the  tax,  &c.,  and  pay  the  surplus 
into  the  county  treasury  for  the  use  of  the  owner.  If  the  vessel 
could  not  be  seized,  the  collector  was  to  make  the  amount  of  the 
tax  out  of  the  real  and  personal  estate  of  the  owner,  &c. 

Under  this  act,  one  Lott,  tax  collector  of  the  State  of  Alabama, 
demanded  of  Cox,  the  owner  of  the  Dorrance,  a  steamer  of  321 
tons,  and  valued  at  $5,000,  and  of  several  other  steamers,  certain 
sums  as  taxes;  and  under  an  act  of  1867,  identical  in  language  with 
the  one  of  1866,  just  quoted,  demanded  from  the  Trade  Company 
of  Mobile  certain  sums  on  like  vessels  owned  by  them;  the  tax  in 
all  the  cases  being  proportioned  to  the  registered  tonnage  of  the 
vessel. 

The  steamboats,  the  subject  of  the  tax,  were  owned  exclusively 
by  citizens  of  the  State  of  Alabama,  and  were  engaged  in  the 
navigation  of  the  Alabama,  Bigbee,  and  Mobile  rivers,  carrying 
freight  and  passengers  between  Mobile  and  other  points  of  said 
rivers,  altogether  within  the  limits  of  that  State.  These  waters 
were  navigable  from  the  sea  for  vessels  of  "ten  or  more  tons'  bur- 
den;" and  it  was  not  denied  that  there  were  ports  of  delivery  on 
them  above  the  highest  points  to  which  these  boats  plied.  The 
owners  of  the  boats  were  not  assessed  for  any  other  tax  on  them 
than  the  one  here  claimed.  The  boats  were  enrolled  and  licensed 
for  the  coasting  trade.  Though  running,  therefore,  between  points 
altogether  within  the  limits  of  the  State  of  Alabama,  the  boats 
were,  as  it  seemed,^  of  that  sort  on  which  Congress  lays  a  tonnage 
duty. 

Cox,  under  compulsion  and  protest,  paid  the  tax  demanded  of 
him,  and  then  brought  assumpsit  in  one  of  the  inferior  State  courts 
of  Alabama,  to  get  back  the  money.  The  Trade  Company  refused 
to  pay,  and  filed  a  bill  in  a  like  court,  to  enjoin  the  collector  from 
proceeding  to  collect.  The  ground  of  resistance  to  the  tax  in  each 
case  was  this,  that  being  laid  in  proportion  to  the  tonnage  of  the 
vessel,  the  tax  was  laid  in  a  form  and  manner  which  the  State  was 
prohibited  by  the  already  quoted  section  of  the  Constitution  from 
adopting.  The  right  of  the  State  to  lay  a  tax  on  vessels  according 
to  their  value  and  as  property  was  not  denied,  but  on*  the  contrary 
conceded.'*    Judgment  being  given  in  each  case  against  the  validity 

1  See  Act  of  July  18th,  1866,  §  28;  fense  to  the  tax  was  taken,  in  the 
14  Stat,  at  Large,  185.  fact  that  by  the  act  of  Congress 

2  It  is  barely  necessary  to  note  admitting  Alabama  into  the  Un- 
that  an  additional  ground  of  de-  ion,  it  is  declared,  "that  all  navi- 


STATE  TONNAGE  TAX  CASES.  71 

of  the  tax,  the  matter  was  taken  to  the  Supreme  Court  of  Ala- 
bama, which  decided  that  it  was  lawful.  To  review  that  judgment 
the  case  was  now  here.     .    .    . 

Mr.  Justice  Clifford  delivered  the  judgment  of  the  court, 
giving  an  opinion  in  each  of  the  eases. 

I.  In  the  first  case. — .  .  .  Congress  has  prescribed  the 
rules  of  admeasurement  and  computation  for  estimating  the  ton- 
nage of  American  ships  and  vessels.^ 

Viewed  in  the  light  of  those  enactments,  the  word  tonnage,  as 
applied  to  American  ships  and  vessels,  must  be  held  to  mean  their 
entire  internal  cubical  capacity,  or  contents  of  the  ship  or  vessel 
expressed  in  tons  of  one  hundred  cubical  feet  each,  as  estimated 
and  ascertained  by  those  rules  of  admeasurement  and  of  com- 
putation.* 

Power  to  tax,  with  certain  exceptions,  resides  with  the  States, 
independent  of  the  Federal  government,  and  the  power,  when  con- 
fined within  its  true  limits,  may  be  exercised  without  restraint 
from  any  Federal  authority.  They  cannot,  however,  without  the 
consent  of  Congress,  lay  any  duty  of  tonnage,  nor  can  they  levy 
any  imposts  or  duties  on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  their  inspection  laws,  as  with- 
out the  consent  of  Congress  they  are  unconditionally  prohibited 
from  exercising  any  such  power.  Outside  of  those  prohibitions 
the  power  of  the  States  to  tax  extends  to  all  objects  within  the 
sovereign  power  of  the  States,  except  the  means  and  instruments 
of  the  Federal  government.  But  ships  and  vessels  owned  by  indi- 
x^iduals  and  belonging  to  the  commercial  marine  are  regarded  as 
the  private  property  of  their  owners,  and  not  as  the  instruments 
or  means  of  the  Federal  government,  and  as  such,  when  viewed  as 
property,  they  are  plainly  within  the  taxing  power  of  the  States, 
as  they  are  not  withdrawn  from  the  operation  of  that  power  by  any 
express  or  implied  prohibition  contained  in  the  Federal  Consti- 
tution.^   ... 

gable  waters  within  the  said  state  s  13  stat,  at  Large,  492,  70;    lb., 

shall  forever  remain  public  high-  444. 

ways,  free  to  the  citizens  of  said  4  Nathan  v.  Louisiana,  8  How- 
state,  and  of  the  United  States,  ard,  82;  Howell  v.  Maryland,  3 
without  any  tax,  duty,  impost,  or  Gill,  14. 

toll  therefor,  imposed  by  the  said  5  Alexander  v.  Railroad,  3  Strob- 

state."     This    ground    not    being  hart,  598. 
passed  upon  by  this  court,   need 
not  be  adverted  to  further. 


72  CASES  ON  CONSTITUTIONAL  LAW. 

Taxes  levied  by  a  State  upon  ships  and  vessels  owned  by  the  citi- 
zens of  the  State  as  property,  based  on  a  valuation  of  the  same  as 
property,  are  not  within  the  prohibition  of  the  Constitution,  but  it 
is  equally  clear  and  undeniable  that  taxes  levied  by  a  State  upon 
ships  and  vessels  as  instruments  of  commerce  and  navigation  are 
within  that  clause  of  the  instrument  which  prohibits  the  States 
from  levying  any  duty  of  tonnage,  without  the  consent  of  Congress; 
and  it  makes  no  difference  whether  the  ships  or  vessels  taxed 
belong  to  the  citizens  of  the  State  which  levies  the  tax  or  the  citi- 
zens of  another  State,  as  the  prohibition  is  general,  withdrawing 
altogether  from  the  States  the  power  to  lay  any  duty  of  tonnage 
under  any  circumstances,  without  the  consent  of  Congress.* 

Annual  taxes  upon  property  in  ships  and  vessels  are  continually 
laid,  and  their  validity  was  never  doubted  or  called  in  question, 
but  if  the  States,  without  the  consent  of  Congress,  tax  ships  or 
vessels  as  instruments  of  commerce,  by  a  tonnage  duty,  or  indi- 
rectly by  imposing  the  tax  upon  the  master  or  crew,  they  assume 
a  jurisdiction  which  thgy  do  not  possess,  as  every  such  act  falls 
directly  within  the  prohibition  of  the  Constitution^     .     .     . 

Tonnage  duties  are  as  much  taxes  as  duties  on  imports  or  exports, 
and  the  prohibition  of  the  Constitution  extends  as  fully  to  such 
duties  if  levied  by  the  States  as  to  duties  on  imports  or  exports, 
and  for  reasons  quite  as  strong  as  those  which  induced  the  framers 
of  the  Constitution  to  withdraw  imports  and  exports  from  State 
taxation.  Measures,  however,  scarcely  distinguishable  from  each 
other  may  flow  from  distinct  grants  of  power,  as,  for  examj)le. 
Congress  does  not  possess  the  power  to  regulate  the  purely  internal 
commerce  of  the  States,  but  Congress  may  enroll  and  license  ships 
and  vessels  to  sail  from  one  port  to  another  in  the  same  State;  and 
it  is  clear  that  such  ships  and  vessels  are  deemed  ships  and  vessels 
of  the  United  States,  and  that  as  such  they  are  entitled  to  the 
privileges  of  ships  and  vessels  employed  in  the  coasting  trade.* 

Steamboats,  as  well  as  sailing  ships  and  vessels,  are  required  to 
be  enrolled  and  licensed  for  the  coasting  trade,  and  the  record 
shows  that  all  the  steamboats  taxed  in  this  case  had  conformed  to 
all  the  regulations  of  Congress  in  that  regard,  that  they  were  duly 
enrolled  and  licensed  for  the  coasting  trade  and  were  engaged  in 

« Gibbons  v.  Ogden,  9  Wheaton,  7  Passenger   Cases,    7    Howard, 

202;  Sennot  v.  Davenport,  22  How-  447,  481. 

ard,  238;   Foster  v.  Davenport,  lb.,  s  i  stat.  at  Large,  287;   Id.,  305; 

245;    Perry  v.  Torrence,  8  Ohio,  3  Kent  (11th  ed.),  203. 
524. 


STATE  TONNAGE  TAX  CASES.  73 

the  transportation  of  passengers  and  freight  within  the  limits  of 
the  State,  upon  waters  navigable  from  the  sea  by  vessels  of  ten  or 
more  tons  burden. 

Tonnage  duties,  to  a  greater  or  less  extent,  have  been  imposed 
by  Congress  ever  since  the  Federal  government  was  organized 
under  the  Constitution  to  the  present  time.  They  have  usually 
been  exacted  when  the  ship  or  vessel  entered  the  port,  and  have 
been  collected  in  a  manner  not  substantially  different  from  that 
prescribe^  in  the  act  of  the  State  legislature  under  consideration. 
Undisputed  authority  exists  in  Congress  to  impose  such  duties, 
and  it  is  not  pretended  that  any  consent  has  ever  been  given  by 
Congress  to  the  State  to  exercise  any  such  power. 

If  the  tax  levied  is  a  duty  of  tonnage,  it  is  conceded  that  it  is 
illegal,  and  it  is  difficult  to  see  how  the  concession  could  be  avoided, 
as  the  prohibition  is  express,  but  the  attempt  is  made  to  show  that 
the  legislature,  in  enacting  the  law  imposing  the  tax,  merely  re- 
ferred to  the  registered  tonnage  of  the  steamboats  "as  a  way  or 
mode  to  determine  and  ascertain  the  tax  to  be  assessed  on  the 
steamboats,  and  to  furnish  a  rule  or  rate  to  govern  the  assessors 
in  the  performance  of  their  duties." 

Suppose  that  could  be  admitted,  it  would  not  have  much  tend- 
ency to  strengthen  the  argument  for  the  defendant,  as  the  sug- 
gestion concedes  what  is  obvious  from  the  schedule,  that  the  taxes 
are  levied  without  any  regard  to  the  value  of  the  steamboats.  But 
the  proposition  involved  in  the  suggestion  cannot  be  admitted,  as, 
by  the  very  terms  of  the  act,  the  tax  is  levied  on  the  steamboats 
wholly  irrespective  of  the  value  of  the  vessels  as  property,  and 
solely  and  exclusively  on  the  basis  of  their  cubical  contents  as 
ascertained  by  the  rules  of  admeasurement  and  computation  pre- 
scribed by  the  act  of  Congress. 

By  the  terms  of  the  law  the  taxation  prescribed  is  "at  the  rate  of 
one  dollar  per  ton  of  the  registered  tonnage  thereof,"  and  the  nine- 
tieth section  of  the  act  provides  that  the  tax  collector  must,  each 
year,  demand  of  the  person  in  charge  of  the  steamboat  whether  the 
taxes  have  been  paid,  and  if  the  person  in  charge  fails  to  produce 
a  receipt  therefor  by  a  tax  collector,  authorized  to  collect  such 
taxes,  the  collector  having  the  list  must  at  once  proceed  to  assess 
the  same,  and  if  the  tax  is  not  paid  on  demand  he  must  seize  such 
steamboat,  &c.,  and  after  twenty  days'  notice,  as  therein  prescribed, 
shall  sell  the  same,  or  so  much  thereof  as  will  pay  the  taxes  and 
expenses  for  keeping  and  costs.^ 

»  Sess.  Acts,  1866,  pp.  7,  31. 


74  CASES   ON   CONSTITUTIONAL  LAW. 

Legislative  enactments,  where  the  language  is  unambiguous, 
cannot  be  changed  by  construction,  nor  can  the  language  be 
divested  of  its  plain  and  obvious  meaning.  Taxes  levied  under 
an  enactment  which  directs  that  a  tax  shall  be  imposed  on  steam- 
boats at  the  rate  of  one  dollar  per  ton  of  the  registered  tonnage 
thereof,  and  that  the  same  shall  be  assessed  and  collected  at  the 
port  where  such  steamboats  are  registered,  cannot,  in  the  judg- 
ment of  this  court,  be  held  to  be  a  tax  on  the  steamboat  as  prop- 
erty. On  the  contrary,  the  tax  is  just  what  the  language  imports, 
a  duty  of  tonnage,  which  is  made  even  plainer  when  it  comes  to  be 
considered  that  the  steamboats  are  not  to  be  taxed  at  all  unless 
they  are  "plying  in  the  navigable  waters  of  the  State,"  showing  to 
a  demonstration  that  it  is  as  instruments  of  commerce  and  not  as 
property  that  they  are  required  to  contribute  to  the  revenues  of 
the  State. 

Such  provision  is  much  more  clearly  within  the'  prohibition  in 
question  than  the  one  involved  in  a  recent  case  decided  by  this 
court,  in  which  it  was  held  that  a  statute  of  a  State  enacting  that 
the  wardens  of  a  port  were  entitled  to  demand  and  receive,  in 
addition  to  other  fees,  the  sum  of  five  dollars  for  every  vessel  arriv- 
ing at  the  port,  whether  called  on  to  perform  any  service  or  not, 
was  both  a  regulation  of  commerce  and  a, duty  of  tonnage,  and 
that  as  such  it  was  unconstitutional  and  void.^" 

Speaking  of  the  same  prohibition,  the  Chief  Justice  said  in  that 
case  that  those  words  in  their  most  obvious  and  general  sense  de- 
scribe a  duty  proportioned  to  the  tonnage  of  the  vessel — a  certain 
rate  on  each  ton — which  is  exactly  what  is  directed  by  the  provision 
in  the  tax  act  before  the  court,  but  he  added  that  it  seems  plain, 
if  the  Constitution  be_  taken  in  that  restricted  sense,  it  would  not 
fully  accomplish  the  intent  of  the  framers,  as  the  prohibition  upon 
the  States  against  levying  duties  on  imports  or  exports  would  be 
ineffectual  if  it  did  not  also  extend  to  duties  on  the  ships  which 
serve  as  the  vehicles  of  conveyance,  which  was  doubtless  intended 
by  the  prohibition  of  any  duty  of  tonnage.  "It  was  not  only  a  pro 
rata  tax  which  was  prohibited,  but  any  duty  on  the  ship,  whether 
a  fixed  sum  upon  its  whole  tonnage,  or  a  sum  to  be  ascertained  by 
comparing  the  amount  of  tonnage  with  the  rate  of  duty." 

Assume  the  rule  to  be  as  there  laid  down,  and  all  must  agree 
that  "the  levy  of  the  tax  in  question  is  expressly  prohibited,  as  the 
schedule  shows  that  it  is  exactly  proportioned '  to  the  registered 
tonnage  of  the  steamboats  plying  in  the  navigable  waters  of  the 
State."    .     .     . 

10  steamship  Co.  v.  Port  Wardens,  6  Wallace,  34. 


STATE  TONNAGE  TAX  CASES.  75 

Taxes  in  aid  of  the  inspection  laws  of  a  State,  under  special  cir- 
cumstances, have  been  upheld  as  necessary  to  promote  the  inter- 
ests of  commerce  and  the  security  of  navigation.^^ 

Laws  of  that  character  are  upheld  as  contemplating  benefits  and 
advantages  to  commerce  and  navigation,  and  as  altogether  distinct 
from  imposts  and  duties  on  imports  and  exports  and  duties  of  ton- 
nage. Usage,  it  is  said,  has  sanctioned  such  laws  where  Congress 
has  not  legislated,  but  it  is  clear  that  such  laws  bear  no  relation  to 
the  act  in  question,  as  the  act  under  consideration  is  emphatically 
an  act  to  raise  revenue  to  replenish  the  treasury  of  the  State  and 
for  no  other  purpose,  and  does  not  contemplate  any  beneficial 
service  for  the  steamboats  or  other  vessels  subjected  to  taxation. 

Beyond  question  the  act  is  an  act  to  raise  revenue  without  any 
corresponding  or  equivalent  benefit  or  advantage  to  the  vessels 
taxed  or  to  the  ship-owners,  and  consequently  it  cannot  be  upheld 
by  virtue  of  the  rules  applied  in  the  construction  of  laws  regulating 
pilot  dues  and  port  charges.^- 

Attempt  was  made  in  the  case  of  Alexander  v.  Kailroad  to  show 
that  the  form  of  levying  the  tax  was  simply  a  mode  of  assessing  the 
vessels  as  property,  but  the  argument  did  not  prevail,  nor  can  it 
in  this  case,  as  the  amount  of  the  tax  is  measured  by  the  tonnage 
of  the  steamboats  and  not  by  their  value  as  property. 

Eeference  is  made  to  the  case  of  the  Towboat  Company  v. 
Bordelon,^^  as  asserting  the  opposite  rule,  but  the  court  is  of  a 
different  opinion,  as  the  tax  in  that  case  was  levied,  not  upon  the 
boat,  but  upon  the  capital  of  the  company  owning  the  boat,  and 
the  court  in  delivering  their  opinion  say  the  capital  of  the  com- 
pany is  property,  and  the  Constitution  of  the  State  requires  an 
equal  and  uniform  tax  to  be  imposed  upon  it  with  the  other  prop- 
erty of  the  State  for  the  support  of  government. 

For  these  reasons  the  court  is  of  opinion  that  the  State  law 
levying  the  taxes  in  this  case  is  unconstitutional  and  void,  that  the 
judgment  of  the  State  Court  is  erroneous  and  that  it  must  be 
reversed,  and  having  come  to  that  conclusion,  the  court  does  not 
find  it  necessary  to  determine  the  other  question. 

Judgment  reversed  with  costs,  and  the  cause  remanded  for  fur- 
the?'  proceedings  in  conformity  to  the  opinion   of  the  court. 

II.  In  the  Second  Case.  .  .  .  Power  to  tax  for  the  sup- 
port of  the  State  governments  exists  in  the  States  independently 

iiCooley  V.  Port  Wardens,  12  S.  C,  286;  Benedict  v.  Vanderbilt, 
Howard,  314.  1  Robt.  N.  Y..  200. 

12  State  V.  Charleston,  4  Rich.,         is  7  Louisiana  An.,  195. 


T6  CASES  ON  CONSTITUTIONAL   LAW. 

of  the  Federal  government,  and  it  may  well  be  admitted  that 
where  there  is  no  cession  of  jurisdiction  for  the  purposes  speci- 
fied in  the  Constitution,  and  no  restraining  compact  between  the 
States  and  the  Federal  government,  the  power  in  the  States  to 
tax  reaches  all  the  property  within  the  State  which  is  not  properly 
denominated  the  instruments  or  means  of  the  Federal  govern- 
ment.^* 

Concede  all  that  and  still  the  court  is  of  opinion  that  the  tax 
in  this  case  is  a  duty  of  tonnage,  and  that  the  law  imposing  it 
is  plainly  unconstitutional  and  void.  Taxes,  as  the  law  provides, 
must  be  assessed  by  the  assessor  in  each  county  on  and  from  the 
following  subjects  and  at  the  following  rates,  to  wit:  "On  all  steam- 
boats, &c.,  plying  in  the  navigable  waters  of  the  State,  at  the  rate 
of  one  dollar  per  ton  of  the  registered  tonnage  thereof,"  which 
must  be  assessed  and  collected  at  the  port  where  such  steamboats 
are  registered,  &c.^'  tJopied  as  the  provision  is  from  the  enactment 
of  the  previous  year,  it  is  obvious  that  it  must  receive  the  same 
construction,  and  as  the  tax  is  one  dollar  per  ton,  it  is  too  plain 
for  argument  that  the  am-ount  of  the  tax  depends  upon  the  carry- 
ing capacity  of  the  steamboat  and  not  upon  her  value  as  property, 
as  the  experience  of  every  one  shows  that  a  small  steamer,  new 
and  well  built,  may  be  of  much  greater  value  than  a  large  one, 
badly  built  or  in  need  of  extensive  repairs.  Separate  lists  are  made 
for  the  county  and  school  taxes,  but  the  two  combined  amount 
exactly  to  one  dollar  per  ton,  as  in  the  levy  for  the  State  tax, 
and  the  court  is  of  the  opinion  that  the  case  falls  within  the  same 
rule  as  the  case  just  decided. 

Evidently  the  word  tonnage  in  commercial  designation  means 
the  number  of  tons  burden  the  ship  or  vessel  will  carry,  as 
estimated  and  ascertained  by  the  official  admeasurement  and  com- 
putation prescribed  by  the  public  authority.  Kegulations  upon 
the  subject  are  enacted  by  Parliament  in  the  parent  country  and 
by  Congress  in  this  country,  as  appears  by  several  acts  of  Con- 
gress.^" Tonnage,  says  a  writer  of  experience,  has  long  been  an 
official  term  intended  originally  to  express  the  burden  that  a  ship 
would  carry,  in  order  that  the  various  dues  and  customs  which 
are  levied  upon  shipping  might  be  levied  according  to  the  size 
of  the  vessel,  or  rather  in  proportion  to  her  capability  of  carry- 

1*  Nathan  v.  Louisiana,  8  How-  448;   "Weston,v.  Charleston,  2  Pet- 
ard, 82;     McCuUoch  v.  Maryland,  ers,  467. 
4  Wheaton,  429;    Society  for  Sav-  is  Revised  Code,  169. 
ings    v.    Coite,    6    Wallace,    604;  le  i  Stat,  at  Large,  305;    13  Id., 
Brown  v.  Maryland,  12  Wheaton,  444. 


STATE  TONNAGE  TAX  CASES.  77 

ing  burden.  Hence  the  term,  as  applied  to  a  ship,  has  become 
almost  synonymous  with  that  of  size."  Apply  that  interpreta- 
tion to  the  word  tonnage  as  used  in  the  tax  act  under  considera- 
tion, a^  it  is  as  clear  as  anything  can  be  in  legislation  that  the 
tax  imposed  by  that  provision  is  a  tonnage  tax,  or  duty  of  ton- 
nage, as  the  phrase  is  in  the  Constitution. 

State  authority  to  tax  ships  and  vessels,  it  is  supposed  by  the 
respondent,  extends  to  all  cases  where  the  ship  or  vessel  is  not 
employed  in  foreign  commerce  or  in  commerce  between  ports  or 
places  in  different  States.  He  concedes  that  the  States  cannot 
levy  a  duty  of  tonnage  on  ships  or  vessels  if  the  ship  or  vessel 
is  employed  in  foreign  commerce  or  in  commerce  "among  the 
States,"  but  he  denies  that  the  prohibition  extends  to  ships  or 
vessels  employed  in  commerce  between  ports  and  places  in  the 
same  State,  and  that  is  the  leading  error  in  the  opinion  of  the 
Supreme  Court  of  the  State.  Founded  upon  that  mistake  the 
proposition  is  that  all  taxes  are  taxes  on  property,  although  levied 
on  ships  and  vessels  duly  enrolled  and  licensed,  if  the  ship  or 
vessel  is  not  employed  in  foreign  commerce  or  in  commerce  among 
the  States. 

Ships  or  vessels  of  ten  or  more  tons  burden,  duly  enrolled  and 
licensed,  if  engaged  in  commerce  on  waters  which  are  navigable 
by  such  vessels  from  the  sea,  are  ships  and  vessels  of  the  United 
States  entitled  to  the  privileges  secured  to  such  vessels  by  the 
act  for  enrolling  or  licensing  ships  or  vessels  to  be  employed  in 
the  coasting  trade.^* 

Such  a  rule  as  that  assumed  by  the  respondent  would  incor- 
porate into  the  Constitution  an  exception  which  it  does  not  con- 
tain. Had  the  prohibition  in  terms  applied  only  to  ships  and  ves- 
sels employed  in  foreign  commerce  or  in  commerce  among  the 
States,  his  construction  would  be  right,  but  courts  of  justice 
cannot  add  any  new  provision  to  the  fundamental  law,  and,  if  not, 
it  seems  clear  to  a  demonstration  that  the  construction  assumed 
by  the  respondent  is  erroneous. 

Decree  reversed,  and  the  cause  remanded  for  further  proceed- 
ings in  conformity  to  the  opinion  of  this  court. 

17  Horjan's  Com.  and  Nav.  Ton-  is  i  Stat,  at  Large,  205;  lb.,  287. 
aage. 


78  CASES  ON  CONSTITUTIONAL  LAW. 


LOAN  ASSOCIATION  v.  TOPEKA. 
20  Wallace,  655.    Decided  1874. 

Error  to  the  Circuit  Court  for  the  District  of  Kansas. 

The  Citizens'  Savings  and  Loan  Association  of  Cleveland 
brought  their  action  in  the  court  below,  against  the  city  of  Topeka, 
on  coupons  for  interest  attached  to  bonds  of  the  city  of  Topeka. 

The  bonds  on  their  face  purported  to  be  payable  to  the  King 
Wrought-Iron  Bridge  Manufacturing  and  Iron- Works  Company, 
of  Topeka,  to  aid  and  encourage  that  company  in  establishing  and 
operating  bridge  shops  in  said  city  of  Topeka,  under  and  in  pursu- 
ance of  section  twenty-six  of  an  act  of  the  legislature  of  the  State 
of  Kansas,  entitled  "An  act  to  incorporate  cities  of  the  second 
class,"  approved  February  29,  1872;  and  also  of  another  "Act  to 
authorize  cities  and  counties  to  issue  bonds  for  the  purpose  of 
building  bridges,  aiding  railroads,  water-power,  or  other  works  of 
internal  improvement,"  approved  March  2,  1872. 

The  city  issued  one  hundred  of  these  bonds  for  $1,000  each,  as 
a  donation  (and  so  it  was  stated  in  the  declaration),  to  encourage 
that  company  in  its  design  of  establishing  a  manufactory  of  iron 
bridges  in  that  city. 

The  declaration  also  alleged  that  the  interest  coupons  first  due 
were  paid  out  of  a  fund  raised  by  taxation  for  that  purpose,  and 
that  after  this  payment  the  plaintiff  became  the  purchaser  of  the 
bonds  and  the  coTipons  on  which  suit  was  brought  for  value, 

A  demurrer  was  interposed  by  the  city  of  Topeka  to  this  declara- 
tion. 

The  section  of  the  act  of  February  29,  on  which  the  main  reli- 
ance was  placed  for  the  authority  to  issue  these  bonds,  reads  as 
follows: 

"Section  76.  The  council  shall  have  power  to  encourage  the 
establishment  of  manufactories  and  such  other  enterprises  as  may 
tend  to  develop  and  improve  such  city,  either  by  direct  appro- 
priation from  the  general  fund  or  by  the  issuance  of  bonds  of 
such  city  in  such  amounts  as  the  council  may  determine;  Provided, 
That  no  greater  amount  than  one  thousand  dollars  shall  be  granted 
for  any  one  purpose,  unless  a  majority  of  the  vptes  cast  at  an  elec- 
tion called  for  that  purpose  shall  authorize  the  same.  The  bonds 
thus  issued  shall  be  made  payable  at  any  time  within  twenty 
years,  and  bear  interest  not  exceeding  ten  per  cent,  per  annum." 


LOAN  ASSOCIATION  v.  TOPEKA.  79 

It  was  conceded  that  the  steps  required  by  this  act  prerequisite 
as  to  issuing  the  bonds  were  regular,  as  were  also  the  other  details, 
and  that  the  language  of  the  statute  was  sufficient  to  justify  the 
action  of  the  city  authorities,  if  the  statute  was  within  the  consti- 
tutional competency  of  the  legislature. 

The  single  question,  therefore,  for  consideration  raised  by  the 
demurrer  was  the  authority  of  the  legislature  of  the  State  of 
Kansas  to  enact  this  part  of  the  statute. 

The  court  below  denied  the  authority,  placing  the  denial  on  two 
grounds: — 

1st.  That  this  part  of  the  statute  violated  the  fifth  section 
of  Article  XII  of  the  Constitution  of  the  State  of  Kansas;  a  sec- 
tion in  these  words: — 

"Sectiox  5.  Provision  shall  be  made  by  general  law  for  the 
organization  of  cities,  towns,  and  villages;  and  their  power  of  tax- 
ation, assessment,  borrowing  money,  contracting  debts,  and  loan- 
ing their  credit,  shall  be  so  restricted  as  to  prevent  the  abuse  of 
such  power." 

[The  argument  here  was  that  the  section  of  the  act  of  February 
29,  1872,  conferring  the  power  to  issue  bonds,  contained  no  re- 
striction as  to  the  amount  which  the  city  might  issue  to  aid  man- 
ufacturing enterprises,  and  that  the  failure  of  the  legislature  to 
limit  and  restrict  the  power  so  as  to  prevent  abuse,  violated  the 
fifth  section  of  Article  XII  of  the  Constitution  above  referred  to.] 

2d.  That  the  act  authorized  the  towns  and  other  municipalities 
to  which  it  applied,  by  issuing  bonds  or  lending  its  credit,  to 
take  the  property  of  the  citizen  under  the  guise  of  taxation  to 
pay  these  bonds,  and  use  it  in  aid  of  the  enterprises  of  others 
which  were  not  of  a  public  character;  that  this  was  a  perversion 
of  the  right  of  taxation,  which  could  only  be  exercised  for  a 
public  use,  to  the  aid  of  individual  interests  and  personal  pur- 
poses of  profit  and  gain. 

The  court  below  accordingly,  sustaining  the  demurrer,  gave 
judgment  in  favor  of  the  defendant,  the  city  of  Topeka,  and  to 
its  judgment  this  writ  of  error  was  taken.     .     .     . 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

Two  grounds  are  taken  in  the  opinion  of  the  circuit  judge  and 
in  the  argument  of  counsel  for  defendant,  on  which  it  is  insisted 
that  the  section  of  the  statute  of  February  29,  1872,  on  which 
the  main  reliance  is  placed  to  issue  the  bonds,  is  unconstitutional. 


80  CASES  ON  CONSTITUTIONAL  LAW. 

The  first  of  these  is,  that  by  section  five  of  article  twelve  of  the 
Constitution  of  that  State  it  is  declared  that  provision  shall  be 
made  by  general  law  for  the  organization  of  cities,  towns,  and 
villages;  and  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  shall  be  so  re- 
stricted as  to  prevent  the  abuse  of  such  power. 

The  argument  is  that  the  statute  in  question  is  void  because  it 
authorizes  cities  and  towns  to  contract  debts,  and  does  not  con- 
tain any  restriction  on  the  power  so  conferred.  But  whether  the 
statute  which  confers  power  to  contract  debts  should  always  con- 
tain some  limitation  or  restriction,  or  whether  a  general  restric- 
tion applicable  to  all  cases  should  be  passed,  and  whether  in  the 
absence  of  both  the  grant  of  power  to  contract  is  wholly  void, 
are  questions  whose  solution  we  prefer  to  remit  to  the  State 
courts,  as  in  this  case  we  find  ample  reason  to  sustain  the  demur- 
rer on  the  second  ground  on  which  it  is  argued  by  counsel  and 
sustained  by  the  Circuit  Court. 

That  proposition  is  that  the  act  authorizes  the  towns  and  other 
municipalities  to  which  it  applies,  by  issuing  bonds  or  loaning  their 
credit,  to  take  the  property  of  the  citizen  under  the  guise  of  tax- 
ation to  pay  these  bonds,  and  use  it  in  aid  of  the  enterprises  of 
others  which  are  not  of  a  public  character,  thus  perverting  the 
right  of  taxation,  which  can  only  be  exercised  for  a  public  use, 
to  the  aid  of  individual  interests  and  personal  purposes  of  profit 
and  gain. 

The  proposition  as  thus  broadly  stated  is  not  new,  nor  is  the 
question  which  it  raises  difficult  of  solution. 

If  these  municipal  corporations,  which  are  in  fact  subdivisions 
of  the  State,  and  which  for  many  reasons  are  vested  with  quasi- 
legislative  powers,  have  a  fund  or  other  property  out  of  which 
they  can  pay  the  debts  which  they  contract,  without  resort  to 
taxation,  it  may  be  within  the  power  of  the  legislature  of  the 
State  to  authorize  them  to  use  it  in  aid  of  projects  strictly  private 
or  personal,  but  which  would  in  a  secondary  manner  contribute 
to  the  public  good;  or  where  there  is  property  or  money  vested 
in  a  corporation  of  the  kind  for  a  particular  use,  as  public  wor- 
ship or  charity,  the  legislature  may  pass  laws  authorizing  them 
to  make  contracts  in  reference  to  this  property,  and  incur  debts 
payable  from  that  source. 

But  such  instances  are  few  and  exceptional,  and  the  proposi- 
tion is  a  very  broad  one,  that  debts  contracted  by  municipal  cor- 
porations must  be  paid,  if  paid  at  all,  out  of  taxes  which  they 
may  lawfully  levy,  and  that  all  contracts  creating  debts  to  be  paid 


LOAN  ASSOCIATION  v.  TOPEKA.  81 

in  future,  not  limited  to  payment  from  some  other  source,  imply  < 
an  obligation  to  pay  by  taxation.     It  follows  that  in  this  class  I 
of  cases  the  right  to  contract  must  be  limited  by  the  right  to  tax,  ( 
and  if  in  the  given  case  no  tax  can  lawfully  be  levied  to  pay  the  \ 
debt,  the  contract  itself  is  void  for  want  of  authority  to  make  it.    ^ 

If  this  were  not  so,  these  corporations  could  make  valid  prom- 
ises, which  they  have  no  means  of  fulfilling,  and  on  which  even 
the  legislature  that  created  them  can  confer  no  such  power.  The 
validity  of  a  contract  which  can  only  be  fulfilled  by  a  resort  to 
taxation  depends  on  the  power  to  levy  the  tax  for  that  purpose.^ 

It  is,  therefore,  to  be  inferred  that  when  the  legislature  of  the  \ 
State  authorizes  a  county  or  city  to  contract  a  debt  by  bond,  it 
intends  to  authorize  it  to  levy  such  taxes  as  are  necessary  to  pay  | 
the  debt,  unless  there  is  in  the  act  itself,  or  in  some  general  statute,  | 
a  limitation  upon  the  power  of  taxation  which  repels  such  any 
inference. 

With  these  remarks  and  with  the  reference  to  the  authorities^ 
which  support  them,  we  assume  that  unless  the  legislature  of  Kan-  j 
sas  had  the  right  to  authorize  the  counties  and  towns  in  that  State  i 
to  levy  taxes  to  be  used  in  aid  of  manufacturing  enterprises,  con-  / 
ducted  by  individuals,  or  private  corporations,  for  purposes  of  \ 
gain,  the  law  is  void,  and  the  bonds  issued  under  it  are  also  void,  j 
We  proceed  to  the  inquiry  whether  such  a  power  exists  in  the  legis-^ 
lature  of  the  State  of  Kansas. 

We  have  already  said  the  question  is  not  new.  The  subject  of 
the  aid  voted  to  railways  by  counties  and  towns  has  been  brought 
to  the  attention  of  the  courts  of  almost  every  State  in  the  Union. 
It  has  been  thoroughly  discussed  and  is  still  the  subject  of  dis- 
cussion in  those  courts.  It  is  quite  true  that  a  decided  prepon- 
derance of  authority  is  to  be  found  in  favor  of  the  proposition 
that  the  legislatures  of  the  States,  unless  restricted  by  some  special 
provisions  of  their  constitutions,  may  confer  upon  these  munici- 
pal bodies  the  right  to  take  stock  in  corporations  created  to  build 
railroads,  and  to  lend  their  credit  to  such  corporations.  Also 
to  levy  the  necessary  taxes  on  the  inhabitants,  and  on  property 
within  their  limits  subject  to  general  taxation,  to  enable  them  to 
pay  the  debts  thus  incurred.  But  very  few  of  these  courts  have 
decided  this  without  a  division  among  the  judges  of  which  they 

1  Sharpless  v.  Mayor  of  Phlla-  Jay,    60    Maine,    127;    Lowell    v. 

delphia,    21    Pennsylvania    State,  Boston,      Massachusetts       (MS.); 

147,  167;     Hanson  v.   Vernon,  27  Whiting  v.  Fond  du  Lac,  25  Wis- 

lowa,  28;    Allen  v.  Inhabitants  of  consin,  188. 

6 


82  CASES   ON   CONSTITUTIONAL   LAW. 

were  composed,  while  others  have  decided  against  the  existence  of 
^the  power  altogether.- 

'  In  all  these  cases,  however,  the  decision  has  turned  upon  the 
question  whether  the  taxation  by  which  this  aid  was  afforded  to 
the  building  of  railroads  was  for  a  public  purpose.  Those  who 
came  to  the  conclusion  that  it  was,  held  the  laws  for  that  purpose 
valid.  Those  who  could  not  reach  that  conclusion  held  them 
void.  In  all  the  controversy  this  has  been  the  turning  point  of 
the  judgments  of  the  courts.  And  it  is  safe  to  say  that  no  court 
has  held  debts  created  in  aid  of  railroad  companies,  by  counties 
or  towns,  valid  on  any  other  ground  than  that  the  purpose  for 
which  the  taxes  were  levied  was  a  public  use,  a  purpose  or  object 
which  it  was  the  right  and  the  duty  of  State  governments  to 
assist  by  money  raised  from  the  people  by  taxation.  The  argu- 
ment in  opposition  to  this  power  has  been,  that  railroads  built 
by  corporations  organized  mainly  for  purposes  of  gain — the  roads 
which  they  built  being  under. their  control,  and  not  that  of  the 
State — were  private  and  not  public  roads,  and  the  tax  assessed  on 
the  people  went  to  swell  the  profits  of  individuals  and  not  to  the 
good  of  the  State,  or  the  benefit  of  the  public,  except  in  a  remote 
and  collateral  way.  On  the  other  hand,  it  was  said  that  roads, 
canals,  bridges,  navigable  streams,  and  all  other  highways  had  in 
all  times  been  matter  of  public  concern.  That  such  channels  of 
travel  and  of  the  carrying  business  had  always  been  established, 
improved,  regulated  by  the  State,  and  that  the  railroad  had  not 
lost  this  character  because  constructed  by  individual  enterprise, 
aggregated  into  a  corporation. 

We  are  not  prepared  to  say  that  the  latter  view  of  it  is  not  the 
true  one,  especially  as  there  are  other  characteristics  of  a  public 
nature  conferred  on  these  corporations,  such  as  the  power  to  obtain 
right  of  way,  their  subjection  to  the  laws  which  govern  common 
carriers,  and  the  like,  which  seem  to  justify  the  proposition.  Of 
the  disastrous  consequences  which  have  followed  its  recognition 
by  the  courts  and  which  were  predicted  when  it  was  first  estab- 
lished there  can  be  no  doubt. 

We  have  referred  to  this  history  of  the  contest  over  aid  to  rail- 
roads by  taxation,  to  show  that  the  strongest  advocates  for  the 
validity  of  these  laws  never  placed  it  on  the  ground  of  the  un- 
limited power  in  the  State  legislature  to  tax  the  people,  but  con- 
ceded that  where  the  purpose  for  which  the  tax  was  to  be  issued, 

2  The  State  v.  Wapello  Co.,  9  21  Pennsylvania  State,  147;  Whit- 
Iowa,  308;  Hanson  v.  Vernon,  27  ing  v.  Fond  du  Lac,  25  Wisconsin, 
Id.,  28;    Sharpless  v.  Mayor,  etc.,     188. 


LOAN  ASSOCIATION  v.  TOPEKA.  83 

could  no  longer  be  justly  claimed  to  have  this  public  character, 
but  was  purely  in  aid  of  private  or  personal  objects,  the  law  au- 
thorizing it  was  beyond  the  legislative  power,  and  was  an  un- 
authorized invasion  of  private  right.* 

It  must  be  conceded  that  there  are  such  rights  in  every  free 
government  beyond  the  control  of  the  State.  A  government  which 
recognized  no  such  rights,  which  held  the  lives,  the  liberty,  and  the 
property  of  its  citizens  subject  at  all  times  to  the  absolute  disposi- 
tion and  unlimited  control  of  even  the  most  democratic  depository 
of  power,  is  after  all  but  a  despotism.  It  is  true  it  is  a  despotism 
of  the  many,  of  the  majority,  if  you  choose  to  call  it  so,  but  it  is 
none  the  less  a  despotism.  It  may  well  be  doubted  if  a  man  is  to 
hold  all  that  he  is  accustomed  to  call  his  own,  all  in  which  he 
has  placed  his  happiness,  and  the  security  of  which  is  essential 
to  that  happiness,  under  the  unlimited  dominion  of  others,  whether 
it  is  not  wiser  that  this  power  should  be  exercised  by  one  man 
than  by  many.  The  theory  of  our  governments.  State  and  na- 
tional, is  opposed  to  the  deposit  of  unlimited  power  anywhere. 
The  executive,  the  legislative,  and  the  judicial  branches  of  these 
governments  are  all  of  limited  and  defined  powers. 

There  are  limitations  on  such  power  which  grow  out  of  the 
essential  nature  of  all  free  governments.  Implied  reservations  of 
individual  rights,  without  which  the  social  compact  could  not 
exist,  and  which  are  respected  by  all  governments  entitled  to  the 
name.  No  court,  for  instance,  would  hesitate  to  declare  void  a 
statute  which  enacted  that  A  and  B,  who  were  husband  and  wife 
to  each  other,  should  be  so  no  longer,  but  that  A  should  thereafter 
be  the  husband  of  C,  and  B  the  wife  of  D.  Or  which  should  enact 
that  the  homestead  now  owned  by  A  should  no  longer  be  his,  but 
should  henceforth  be  the  property  of  B.* 

Of  all  the  powers  conferred  upon  government  that  of  taxation 
is  mostTiaBleto^abuse:  Given  a  purpose  or  object  for  which  tax- 
ation may  be  lawfuly  used,  and  the  extent  of  its  exercise  is  in  its 
very  nature  unlimited.  It  is  true  that  express  limitation  on  the 
amount  of  tax  to  be  levied  or  the  things  to  be  taxed  may  be  im- 
posed by  constitution  or  statute,  but  in  most  instances  for  which 
taxes  are  levied,  as  the  support  of  government,  the  prosecution  of 

3  Olcott  v.  Supervisors,  16  Wal-  *  Whiting   v.   Fond   du   Lac,   25 

lace,    689;     People    v.    Salem,    20  Wisconsin,  188;    Cooley  on  Consti- 

Michigan,  452;    Jenkins  v.  Andov-  tiitional  Limitations,  129,  175,  487; 

er,  103  Massachusetts,  94;    Dillon  Dillon  on  Municipal  Corporations, 

on  Municipal  Corporations,  §  587;  §  587. 
2  Redfield's  Laws  of  Railways,  398, 
rule  2. 


84  CASES   ON  CONSTITUTIONAL   LAW. 

war,  the  national  defense,  any  limitation  is  unsafe.  The_entire 
resources  of  the  people  should  m  some  insfahces  be  at  the.  disposal 
of  the  government. 

The  power  to  tax  is  therefore,  the  strongest,  the  most  pervad- 
ing of  all  the  powers  of  government,  reaching  directly  or  indirectly 
to  all  classes  of  the  people.    It  was  said  by  Chief  Justice  Marshall, 
in  the  case  of  McCulloch  v.  The  State  of  Maryland,'  that  the  power 
to  tax  is  the  power  to  destroy.    A  striking  instance  of  the  truth 
of  the  proposition  is  seen  in  the  fact  that  the  existing  tax  of  ten 
per  cent.,  imposed  by  the  United  States  on  the  circulation  of  all 
other  banks  than  the  National  banks,  drove  out  of  existence  every 
State  bank  of  circulation  within  a  year  or  two  after  its  passage. 
This  power  can  as  readily  be  employed  against  one  class  of  indi- 
viduals and  in  favor  of  another,  so  as  to  ruin  the  one  class  and 
1  give  unlimited  wealth  and  prosperity  to  the  other,  if  there  is  no 
I  implied  limitation  of  the  uses  for  which  the  power  may  be  exer- 
\;ised. 

To  lay  with  one  hand  the  power  of  the  government  on  the  prop- 
erty of  the  citizen,  and  with  the  other  to  bestow  it  upon  favored 
individuals  to  aid  private  enterprises  and  build  up  private  for- 
tunes, is  none  the  less  a  robbery  because  it  is  done  under  the  forms 
of  law  and  is  called  taxation.  This  is  not  legislation.  It  is  a 
decree  under  legislative  forms. 

/    Nor  is  it  taxation.    A  "tax,"  "says  Webster's  Dictionary,  "is  a 

rate  or  sum  of  money  assessed  on  the  person  or  property  of  a  citizen 

^  by  government  for  the  use  of  the  nation  or  State."     "Taxes  are 

j  burdens  or  charges  imposed  by  the  legislature  upon  persons  or 

[property  to  raise  money  for  public  purposes."*' 

Coulter,  J.,  in  Northern  Liberties  v.  St.  John's  Church,^  says, 
very  forcibly:  "I  think  the  common  mind  has  everywhere  taken  in 
the  understanding  that  taxes  are  a  public  imposition,  levied  by  au- 
thority of  the  government  for  the  purpose  of  carrying  on  the  gov- 
ernment in  all  its  machinery  and  operations — that  they  are  imposed 
for  a  public  purpose." 

We  have  established,  we  think,  beyond  cavil  that  there  can  be 
no  lawful  tax  which  is  not  laid  for  a  public  purpose.  It  may  not 
be  easy  to  draw  the  line  in  all  cases  so  as  to  decide  what  is  a  public 
purpose  in  this  sense  and  what  is  not. 

B  4  Wheaton,  431.  York,  11  Johnson,  77;    Camden  v. 

6  Cooley  on  Constitutional  Llml-  Allen,  2  Butcher,  398;  Sharpless  v. 
tations,  479.  Mayor     of     Philadelphia,     supra; 

7  13  Pennsylvania  State,  104;  see  Hanson  v.  Vernon,  27  Iowa,  47; 
also  Pray  v.  Northern  Liberties,  Whiting  v.  Fond  du  Lac,  25  Wis- 
31  Id.,  69;  Matter  of  Mayor  of  New  consin,  188, 


SPRINGER  V.  UNITED  STATES.  85 

It  is  undoubtedly  the  duty  of  the  legislature  which  imposes  I 
or  authorizes  municipalities  to  impose  a  tax  to  see  that  it  is  notj 
to  be  used  for  purposes  of  private  interest  instead  of  a  public  use,  | 
and  the  courts  can  only  be  justified  in  interposing  when  a  violation 
of  this  principle  is  clear  and  the  reason  for  interference  cogent. 
And  in  deciding  whether,  in  the  given  case,  the  object  for  which 
the  taxes  are  assessed  falls  upon  the  one  side  or  the  other  of  this 
line,  they  must  be  governed  mainly  by  the  course  and  usage  of 
the  government,  the  objects  for  which  taxes  have  been  customarily 
and  by  long  course  of  legislation  levied,  what  objects  or  purposes 
have  been  considered  necessary  to  the  support  and  for  the  proper 
use  of  the  government,  whether  State  or  municipal.     Whatever 
lawfully  pertains  to  this,  and  is  sanctioned  by  time  and  the  acqui- 
escence of  the  people,  may  well  be  held  to  belong  to  the  public 
use,  and  proper  for  the  maintenance  of  good  government,  thoughy* 
this  may  not  be  the  only  criterion  of  rightful  taxation. 

But  in  the  case  before  us,  in  which  the  towns  are  authorized^ 
to  contribute  aid  by  way  of  taxation  to  any  class  of  manufacturers,  \ 
there  is  no  difficulty  in  holding  that  this  is  not  such  a  public  pur-  i 
pose  as  we  have  been  considering.     If  it  be  said  that  a  benefit  I 
results  to  the  local  public  of  a  town  by  establishing  manufactures,  j 
the  same  may  be  said  of  any  other  business  or  pursuit  which  em- 
ploys capital  or  labor.      The  merchant,  the  mechanic,  the  inn- 
keeper, the  banker,  the  builder,  the  steamboat  owner  are  equally 
promoters  of  the  public  good,  and  equally  deserving  the  aid  of  the 
citizens  by  forced  contributions.     No  line  can  be  drawn  in  favor 
of  the  manufacturer  which  would  not  open  the  coffers  of  the  pub- 
lic treasury  to  the  importunities  of  two-thirds  of  the  business 
men  of  the  city  or  town.     .     .     . 

Judgment  affirmed. 

[Mr.  Justice  Clifford  delivered  a  dissenting  opinion.] 


SPEINGER  V.  UNITED  STATES. 
102  U.  S.,  586.    Decided  1880. 

[Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
em  District  of  Illinois.  The  facts  are  sufficiently  stated  in  the 
opinion  of  the  court.] 

Mr.  Justice  Svtayne,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 


86  CASES  ON  CONSTITUTIONAL  LAW. 

The  central  and  controlling  question  in  this  case  is  whether  the 
tax  which  was  levied  on  the  income,  gains,  and  profits  of  the  plaint- 
iff in  error,  as  set  forth  in  the  record,  and  by  pretended  virtue 
of  the  acts  of  Congress  and  parts  of  acts  therein  mentioned,  is  a 
direct  tax.  .  .  .  If  it  was,  not  having  been  laid  according  to 
the  requirements  of  the  Constitution,  it  must  be  admitted  that 
the  laws  imposing  it,  and  the  proceedings  taken  under  them  by 
the  assessor  and  cdlector  for  its  imposition  and  collection,  were 
all  void. 

Many  of  the  provisions  of  the  Articles  of  Confederation  of  1777 
were  embodied  in  the  existing  organic  law.  They  provided  for 
a  common  treasury  and  the  mode  of  supplying  it  with  funds.  The 
latter  was  by  requisitions  upon  the  several  States.  The  delays  and 
difficulties  in  procuring  the  compliance  of  the  States,  it  is  known, 
was  one  of  the  causes  that  led  to  the  adoption  of  the  present  Con- 
stitution. This  clause  of  the  articles  throws  no  light  on  the  ques- 
tion we  are  called  upon  to  consider.  Nor  does  the  journal  of  the 
proceedings  of  the  constitutional  convention  of  1787  contain  any- 
thing of  much  value  relating  to  the  subject. 

It  appears  that  on  the  11th  of  July,  in  that  year,  there  was  a 
debate  of  some  warmth  involving  the  topic  of  slavery.  On  the  day 
following,  Gouverneur  Morris,  of  New  York,  submitted  a  propo- 
sition "that  taxation  shall  be  in  proportion  to  representation."  It 
is  further  recorded  in  this  day's  proceedings,  that  Mr.  Morris  hav- 
ing so  varied  his  motion  by  inserting  the  word  "direct,"  it  passed 
nem.  con.,  as  follows:  "Provided  always,  that  direct  taxes  ought 
to  be  proportioned  to  representation."  2  Madison  Papers,  by  Gil- 
pin, pp.  1079-1081. 

On  the  24th  of  the  same  month,  Mr.  Morris  said  that  "he 
hoped  the  committee  would  strike  out  the  whole  clause.  .  .  . 
He  had  only  meant  it  as  a  bridge  to  assist  us  over  a  gulf;  having 
passed  the  gulf,  the  bridge  may  be  removed.  He  thought  the 
principle  laid  down  with  so  much  strictness  liable  to  strong  objec- 
tions." Id.  1197.  The  gulf  was  the  share  of  representation 
claimed  by  the  Southern  States  on  account  of  their  slave  popula- 
tion. But  the  bridge  remained.  The  builder  could  not  remove 
it,  much  as  he  desired  to  do  so.  All  parties  seem  thereafter  to  have 
avoided  the  subject.  With  one  or  two  immaterial  exceptions,  not 
necessary  to  be  noted,  it  does  not  appear  that  it  was  again  ad- 
verted to  in  any  way.  It  was  silently  incorporated  into  the  draft 
of  the  Constitution  as  that  instrument  was  finally  adopted. 

It  does  not  appear  that  an  attempt  was  made  by  any  one  to 
define  the  exact  meaning  of  the  language  employed. 


SPRINGER  V.  UNITED  STATES.  87 

In  the  twenty-first  number  of  the  Federalist,  Alexander  Ham- 
ilton, speaking  of  taxes  generally,  said:  "Those  of  the  direct 
kind,  which  principally  relate  to  land  and  buildings,  may  admit  of 
a  rule  of  apportionment.  Either  thie  value  of  the  land,  or  the 
number  of  the  people,  may  serve  as  a  standard."  The  thirty-sixth 
number  of  that  work,  by  the  same  author,  is  devoted  to  the  subject 
of  internal  taxes.  It  is  there  said,  "They  may  be  subdivided  into 
those  of  the  direct  and  those  of  the  indirect  kind."  In  this  con- 
nection land-taxes  and  poll-taxes  are  discussed.  The  former  are 
commended  and  the  latter  are  condemned.  Nothing  is  said  of  any 
other  direct  tax.  In  neither  case  is  there  a  definition  given  or  at- 
tempted of  the  phrase,  "direct  tax." 

The  very  elaborate  researches  of  the  plaintiff  in  error  have  fur- 
nished us  with  nothing  from  the  debates  of  the  State  conventions, 
by  whom  the  Constitution  was  adopted,  which  gives  us  any  aid. 
Hence  we  may  safely  assume  that  no  such  material  exists  in  that 
direction,  though  it  is  known  that  Virginia  proposed  to  Congress 
an  amendment  relating  to  the  subject,  and  that  Massachusetts, 
South  Carolina,  New  York,  and  North  Carolina  expressed  strong 
disapprobation  of  the  power  given  to  impose  such  burdens.  1 
Tucker's  Blackstone,  pt.    1,   app.,   235. 

Perhaps  the  two  most  authoritative  persons  in  the  convention 
touching  the  Constitution  were  Hamilton  and  Madison.  The  lat- 
ter, in  a  letter  of  May  11,  1794,  speaking  of  the  tax  which  was 
adjudicated  upon  in  Hylton  v.  United  States  (3  Dall.,  171),  said, 
"The  tax  on  carriages  succeeded  in  spite  of  the  Constitution  by  a 
majority  of  twenty,  the  advocates  of  the  principle  being  reinforced 
by  the  adversaries  of  luxury."  2  Mad.  Writings  (pub.  by  Con- 
gress), p.  14.  In  another  letter,  of  the  7th  of  February,  1796,  re- 
ferring to  the  case  of  Hylton  v.  United  States,  then  pending,  he 
remarked:  "There  never  was  a  question  on  which  my  mind  was 
better  satisfied,  and  yet  I  have  very  little  expectation  that  it  will 
be  viewed  in  the  same  light  by  the  court  that  it  is  by  me."  Id., 
77.    Whence  the  despondency  thus  expressed  is  unexplained. 

Hamilton  left  behind  him  a  series  of  legal  briefs,  and  among 
them  one  entitled  "Carriage  tax."  See  vol.  vii.,  p.  848,  of  his 
works.  This  paper  was  evidently  prepared  with  a  view  to  the 
Hylton  case,  in  which  he  appeared  as  one  of  the  counsel  for  the 
United  States.  In  it  he  says:  "What  is  the  distinction  between 
direct  and  indirect  taxes?  It  is  a  matter  of  regret  that  terms  so 
uncertain  and  vague  in  so  important  a  point  are  to  be  found  in 
the  Constitution.  We  shall  seek  in  vain  for  any  antecedent  set- 
tled legal  meaning  to  the  respective  terms.    There  is  none.    We 


88  CASES  ON  CONSTITUTIONAL  LAW. 

shall  be  as  much  at  a  loss  to  find  any  disposition  of  either  which 
can  satisfactorily  determine  the  point."  There  being  many  car- 
riages in  some  of  the  States,  and  very  few  in  others,  he  points  out 
the  preposterous  consequences  if  such  a  tax  be  laid  and  collected 
on  the  principle  of  apportionment  instead  of  the  rule  of  uniformity. 
He  insists  that  if  the  tax  there  in  question  was  a  direct  tax,  so 
would  be  a  tax  on  ships,  according  to  their  tonnage.  He  suggests 
that  the  boundary  line  between  direct  and  indirect  taxes  be  set- 
tled by  "a  species  of  arbitration,"  and  that  direct  taxes  be  held  to 
be  only  "capitation  or  poll  taxes,  a^d  taxes  on  lands  and  buildings, 
and  general  assessments,  whether  on  the  whole  property  of  indi- 
viduals or  on  their  whole  real  or  personal  estate.  All  else  must, 
of  necessity,  be  considered  as  indirect  taxes." 

The  tax  here  in  question  falls  within  neither  of  these  categories. 
It  is  not  a  tax  on  the  "whole  .  .  .  personal  estate"  of  the  in- 
dividual, but  only  on  his  income,  gains,  and  profits  during  a  year, 
which  may  have  been  but  a  small  part  of  his  personal  estate,  and  in 
most  cases  would  have  been  so.  This  classification  lends  no  sup- 
port to  the  argument  of  the  plaintiff  in  error. 

The  Constitution  went  into  operation  on  the  4th  of  March,  1789. 

It  is  important  to  look  into  the  legislation  of  Congress  touching 
the  subject  since  that  time.  The  following  summary  will  suffice 
for  our  purpose.  We  shall  refer  to  the  several  acts  of  Congress  to 
be  examined,  according  to  their  sequence  in  dates.  In  all  of  them 
the  aggregate  amount  required  to  be  collected  was  apportioned 
among  the  several  States. 

The  act  of  July  14,  1798,  c.  75,  1  Stat.  53.  This  act  imposed 
a  tax  upon  real  estate  and  a  capitation  tax  upon  slaves. 

The  act  of  Aug.  2,  1813,  c.  37,  3  Id.  53.  By  this  act  the  tax 
was  imposed  upon  real  estate  and  slaves,  according  to  their  respect- 
ive values  in  money. 

The  act  of  Jan.  19,  1815,  c.  21,  Id.  164.  This  act  imposed  the 
tax  upon  the  same  descriptions  of  property,  and  in  like  manner  as 
the  preceding  act. 

The  act  of  Feb.  27,  1815,  c.  60,  Id.  216,  applied  to  the  District 
of  Columbia  the  provisions  of  the  act  of  Jan.  19,  1815. 

The  act  of  March  5,  1816,  c.  24,  Id.  255,  repealed  the  two  pre- 
ceding acts,  and  re-enacted  their  provisions  to  enforce  the  collec- 
tion of  the  smaller  amount  of  tax  thereby  prescribed. 

The  act  of  Aug.  5,  1861,  e.  45, 12  Id.  294,  required  the  tax  to  be 
levied  wholly  on  real  estate. 

The  act  of  June  7,  1862,  c.  98,  Id.  422,  and  the  act  of  Feb.  6, 
1863,  c.  21,  Id.  640,  both  relate  only  to  the  collection,  in  insurrec- 


SPRINGER  V.  UNITED  STATES.  89 

tionary  districts,  of  the  direct  tax  imposed  by  the  act  of  Aug. 
6,  1861,  and  need  not,  therefore,  be  more  particularly  noticed. 

It  will  thus  be  seen  that  whenever  the  government  has  imposed 
a  tax  which  it  recognized  as  a  direct  tax,  it  has  never  been  applied 
to  any  objects  but  real  estate  and  slaves.  The  latter  application 
may  be  accounted  for  upon  two  grounds:  1.  In  some  of  the  States 
slaves  were  regarded  as  real  estate  (1  Hurd,  Slavery,  239;  Veazie 
Bank  v.  Fenno,  8  Wall.,  533);  and,  2.  Such  an  extension  of  the 
tax  lessened  the  burden  upon  the  real  estate  where  slavery  existed, 
while  the  result  to  the  national  treasury  was  the  same,  whether  the 
slaves  were  omitted  or  included.  The  wishes  of  the  South  were, 
therefore,  allowed  to  prevail.  We  are  not  aware  that  the  question 
of  the  validity  of  such  a  tax  was  ever  presented  for  adjudication. 
Slavery  having  passed  away,  it  cannot  hereafter  arise.  It  does 
not  appear  that  any  tax  like  the  one  here  in  question  was  ever  re- 
garded or  treated  by  Congress  as  a  direct  tax.  This  uniform 
practical  construction  of  the  Constitution  touching  so  important 
a  point,  through  so  long  a  period,  by  the  legislative  and  executive 
departments  of  the  government,  though  not  conclusive,  is  a  con- 
sideration of  great  weight. 

There  are  four  adjudications  by  this  court  to  be  considered. 
They  have  an  important,  if  not  a  conclusive,  application  to  the 
case  in  hand.  .  .  .  [Here  follows  a  discussion  of  Hylton  v. 
United  States,  3  Dallas,  171.]  In  Pacific  Insurance  Co.  v.  Soule 
(7  Wall.,  433),  the  taxes  in  question  were  upon  the  receipts  of 
such  companies  from  premiums  and  assessments,  and  upon  all 
sums  made  or  added,  during  the  year,  to  their  surplus  or  contin- 
gent funds.  This  court  held  unanimously  that  the  taxes  were  not 
direct  taxes,  and  that  they  were  valid.  .  .  .  [Here  follows  an 
extract  from  Veazie  Bank  v.  Fenno,  8  Wallace,  533.]  In  Scholey 
v.  Eew  (23  Wall.,  331),  the  tax  involved  was  a  succession  tax,  im- 
posed by  the  acts  of  Congress  of  June  30,  1864,  and  July  13,  1866. 
It  was  held  that  the  tax  was  not  a  direct  tax,  and  that  it  was 
constitutional  and  valid.  In  delivering  the  opinion  of  the  court, 
Mr.  Justice  Clifford,  after  remarking  that  the  tax  there  in  ques- 
was  not  a  direct  tax,  said:  "Instead  of  that,  it  is  plainly  an  excise 
tax  or  duty,  authorized  by  sect.  1,  art.  8,  of  the  Constitution, 
which  vests  the  power  in  Congress  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare."  He  said  further:  "Taxes  on  houses, 
lands,  and  other  permanent  real  estate  have  always  been  deemed 
to  be  direct  taxes,  and  capitation  taxes,  by  the  express  words  of 
the  Constitution,  are  within  the  same  category;  but  it  has  never 


90  CASES   ON   CONSTITUTIONAL  LAW. 

been  decided  that  any  other  legal  exactions  for  the  support  of  the 
Federal  government  fall  within  the  condition  that  unless  laid  in 
proportion  to  numbers  the  assessment  is  invalid." 

All  these  cases  are  undistinguishable  in  principle  from  the  case 
now  before  us,  and  they  are  decisive  against  the  plaintiff  in  error. 

The  question,  what  is  a  direct  tax,  is  one  exclusively  in  Ameri- 
can jurisprudence.  The  text-writers  of  the  country  are  in  entire 
accord  upon  the  subject. 

Mr.  Justice  Story  says  all  taxes  are  usually  divided  into  two 
classes, — those  which  are  direct  and  those  which  are  indirect, — and 
that  "under  the  former  denomination  are  included  taxes  on  land 
or  real  property,  and,  under  the  latter,  taxes  on  consumption." 
1  Const.,  sect.  950. 

Chancellor  Kent,  speaking  of  the  case  of  Hylton  v.  United  States, 
says:  "The  better  opinion  seemed  to  be  that  the  direct  taxes  con- 
templated by  the  Constitution  were  only  two,  viz.,  a  capitation 
or  poll  tax  and  a  tax  on  land."  1  Com.,  257.  See  also  Cooley, 
Taxation,  p.  5,  note  2;  Pomeroy,  Const.  Law,  157;  Sharswood's 
Blackstone,  308,  note;    Rawle,  Const.,  30;    Sergeant,  Const.,  305. 

We  are  not  aware  that  any  writer,  since  Hylton  v.  United  States 
was  decided,  has  expressed  a  view  of  the  subject  different  from 
that  of  these  authors. 

Our  conclusions  are,  that  direct  taxes,  within  the  meaning  of  the 
Constitution,  are  only  capitation  taxes,  as  expressed  in  that  in- 
strument, and  taxes  on  real  estate;  and  that  the  tax  of  which  the 
plaintiff  in  error  complains  is  within  the  category  of  an  excise  or 
duty.  Pomeroy,  Const.  Law,  177;  Pacific  Insurance  Co.  v.  Soule, 
and  Scholey  v.  Rew,  supra. 

Against  the  considerations,  in  one  scale,  in  favor  of  these  propo- 
sitions, what  has  been  placed  in  the  other,  as  a  counterpoise?  Our 
answer  is,  certainly  nothing  of  such  weight,  in  our  judgment,  as 
to  require  any  special  reply.  The  numerous  citations  from  the 
writings  of  foreign  political  economists,  made  by  the  plaintiff  in 
error,  are  sufficiently  answered  by  Hamilton  in  his  brief,  before 
referred  to.  Judgment  affirmed. 


Kt-'^—^l,  t^"^*^  '"^■"^  I 


POLLOCK  V.  FARMERS'  LOAN  AND  TRUST  CO.  91 

POLLOCK  V.  FARMERS'  LOAX  AND  TRUST  COMPANY. 

(Rehearing.) 

HYDE  V.  CONTINENTAL  TRUST  COMPANY.    (Rehearing.) 

158  U.  S.,  601.    Decided  1895. 

[This  was  a  bill  filed  by  Charles  Pollock,  a  citizen  of  the  State 
of  Massachusetts,  on  behalf  of  himself  and  all  other  stock-holders 
of  the  defendant  company  similarly  situated,  against  the  Farmers' 
Loan  and  Trust  Co.,  a  corporation  of  the  State  of  New  York. 
The  bill  alleged  that  the  defendant  claimed  authority  under  the 
provisions  of  the  act  of  Congress  of  August  15,  1894,  to  pay  to 
the  United  States  a  tax  of  two  per  centum  on  the  net  profits  of 
said  company,  including  the  income  derived  from  real  estate  and 
bonds  of  the  City  of  New  York  owned  by  it.  The  bill  further 
alleged  that  such  a  tax  was  unconstitutional,  null,  and  void,  in 
that  it  was  a  direct  tax  with  respect  to  the  income  from  real  estate, 
and  in  that  the  income  from  stocks  and  bonds  of  the  States  of 
the  United  States  and  counties  and  municipalities  therein  is  not 
subject  to  the  taxing  power  of  Congress.  The  bill  prayed  that  the 
provisions  known  as  the  income  tax  incorporated  in  the  act  of  Con- 
gress of  August  15,  1894,  might  be  adjudged  unconstitutional, 
null,  and  void,  and  that  the  defendants  might  be  restrained  from 
voluntarily  complying  with  such  provisions.  On  April  8,  1895,  the 
Court,  one  justice  being  absent,  decided: 

"A  tax  on  the  rents  or  income  of  real  estate  is  a  direct  tax, 
within  the  meaning  of  that  term  as  used  in  the  Constitution  of 
the^^United  States. 

"A  tax  upon  incomes  derived  from  the  interest  of  bonds  issued 
by  a  municipal  corporation  is  a  tax  upon  the  power  of  the  State 
and  its  instrumentalities  to  borrow  money,  and  is  consequently 
repugnant  to  the  Constitution  of  the  United  States. 

"Upon  each  of  the  other  questions  argued  at  bar,  to  wit: 
1.  Whether  the  void  provision  as  to  rent  and  income  from  real 
estate  invalidates  the  whole  act?  2.  Whether  as  to  the  income 
from  personal  property  as  such,  the  act  is  unconstitutional,  as  lay- 
ing direct  taxes?  3.  Whether  any  part  of  the  tax,  if  not  consid- 
ered as  a  direct  tax,  is  invalid  for  want  of  uniformity  on  either  of 
the  grounds  suggested? — the  Justices  who  heard  the  argument  are 
equally  divided,  and,  therefore,  no  opinion  is  expressed."  (157 
U.  S.,  429.) 

Inasmuch  as  the  cases  had  not  been  heard  by  a  full  court,  and 


92  CASES  ON  CONSTITUTIONAL  LAW. 

since  the  question  upon  which  the  court  was  equally  divided  still 
lacked  authoritative  determination,  the  appellants  were  granted  a 
rehearing.  The  cases  were  re-argued  before  the  full  bench,  and  on 
May  20,  1895,  the  following  opinion  was  rendered.] 

Me.  Chief  Justice  Fullek  delivered  the  opinion  of  the  court. 

"Whenever  this  court  is  required  to  pass  upon  the  validity  of  an 
act  of  Congress  as  tested  by  the  fundamental  law  enacted  by  the 
people,  the  duty  imposed  demands  in  its  discharge  the  utmost  de- 
liberation and  care  and  invokes  the  deepest  sense  of  responsibility. 
And  this  is  especially  so  when  the  question  involves  the  exercise 
of  a  great  governmental  power  and  brings  into  consideration,  as 
vitally  affected  by  the  decision,  that  complex  system  of  govern- 
inent  so  sagaciously  framed  to  secure  and  perpetuate  "an  inde- 
structible union  composed  of  indestructible  States." 

We  have,  therefore,  in  anxious  desire  to  omit  nothing  which 
might  in  any  degree  tend  to  elucidate  the  questions  submitted, 
and  aided  by  further  able  arguments  embodying  the  fruits  of 
elaborate  research,  carefully  re-examined  these  cases,  with  the  re- 
sult that,  while  our  former  conclusions  remain  unchanged,  their 
scope  must  be  enlarged  by  the  acceptance  of  their  logical  conse- 
quences. The  very  nature  of  the  constitution,  as  observed  by  Chief 
Justice  Marshall  in  one  of  his  greatest  judgments,  "requires  that 
only  its  great  outlines  should  be  marked,  its  important  objects 
designated,  and  the  minor  ingredients  which  compose  those  ob- 
jects be  deducted  from  the  nature  of  the  objects  themselves."  "In 
considering  this  question,  then,  we  must  never  forget  that  it  is  a 
Constitution  that  vre  are  expounding.''  McCulloch  v.  Maryland, 
4  Wheat.,  316,  407. 

As  heretofore  stated,  the  Constitution  divided  Federal  taxation 
into  two  great  classes,  the  class  of  direct  taxes  and  the  class  of 
duties,  imposts,  and  excises  and  prescribed  two  rules  which  qual- 
ified the  grant  of  power  as  to  each  class. 

The  power  to  lay  direct  taxes,  apportioned  among  the  several 
States  in  proportion  to  their  representation  in  the  popular  branch 
of  Congress,  a  representation  based  on  population  as  ascertained 
by  the  census,  was  plenary  and  absolute,  but  to  lay  direct  taxes 
without  apportionment  was  forbidden.  The  power  to  lay  duties, 
imposts,  and  excises  was  subject  to  the  qualification  that  the  im- 
position must  be  uniform  throughout  the  United  States. 

Our  previous  decision  was  confined  to  the  consideration  of  the 
validity  of  the  tax  on  the  income  from  real  estate  and  on  the  in- 
come from  municipal  bonds.     The  question  thus  limited,  was 


POLLOCK  V.  FARMERS'  LOAN  AND  TRUST  CO.  93 

whether  such  taxation  was  direct  or  not,  in  the  meaning  of  the 
Constitution,  and  the  court  went  no  further  as  to  the  tax  on  the 
incomes  from  real  estate  than  to  hold  that  it  fell  within  the  same 
class  as  the  source  whence  the  income  was  derived,  that  is,  that  a 
tax  upon  the  realty  and  a  tax  upon  the  receipts  therefrom  were 
alike  direct;  while  as  to  the  income  from  municipal  bonds,  that 
could  not  be  taxed,  because  of  want  of  power  to  tax  the  source, 
and  no  reference  was  made  to  the  nature  of  the  tax  being  direct 
or  indirect. 

We  are  now  permitted  to  broaden  the  field  of  inquiry  and  deter- 
mine to  which  of  the  two  great  classes  a  tax  upon  a  person's  entire 
income,  whether  derived  from  rents  or  products  or  otherwise,  of 
real  estate,  or  from  bonds,  stocks  or  other  forms  of  personal  prop- 
erty, belongs;  and  we  are  unable  to  conclude  that  the  enforced 
subtraction  from  the  yield  of  all  the  owner's  real  or  personal  prop- 
erty, in  the  manner  prescribed,  is  so  different  from  a  tax  upon  the 
})roperty  itself  that  it  is  not  a  direct  but  an  indirect  tax  in  the 
meaning  of  the  Constitution. 

The  words  of  the  Constitution  are  to  be  taken  in  their  obvious 
sense  and  to  have  a  reasonable  construction.  In  Gibbons  v.  Ogden, 
Chief  Justice  Marshall,  with  his  usual  felicity,  said: 

"As  men,  whose  intentions  require  no  concealment,  generally 
employ  the  words  which  most  directly  and  aptly  express  the  ideas 
they  intend  to  convey,  the  enlightened  patriots  who  framed  our 
Constitution  and  the  people  who  adopted  it  must  be  understood  to 
have  employed  words  in  their  natural  sense  and  to  have  intended 
what  they  have  said."     9  Wheat.,  1,  188.     .     .     . 

We  know  of  no  reason  for  holding  otherwise  than  that  the  words 
"direct  taxes"  on  the  one  hand,  and  "duties,  imposts,  and  excises" 
on  the  other,  were  used  in  the  Constitution  in  their  natural  and 
obvious  sense,  nor,  in  arriving  at  what  those  terms  embrace,  do  we 
perceive  any  ground  for  enlarging  them  beyond,  or  narrowing 
them  within,  their  natural  and  obvious  import  at  the  time  the 
Constitution  was  framed  and  ratified.     .     .     . 

[Here  follows  a  discussion  of  the  views  of  Hamilton  and  Madison 
and  of  the  Hylton  case.] 

What  was  decided  in  the  Hylton  case  was,  then,  that  a  tax  on 
carriages  was  an  excise,  and,  therefore,  an  indirect  tax.  The  con- 
tention of  Mr.  Madison  in  the  House  was  only  so  far  disturbed  by 
it,  that  the  court  classified  it  where  he  himself  would  have  held  it 
constitutional,  and  he  subsequently  as  President  approved  a  simi- 
lar act.    3  Stat.,  40.    The  contention  of  Mr.  Hamilton  in  the  Fed- 


94  CASES   ON  CONSTITUTIONAL   LAW. 

eralist  was  not  disturbed  by  it  in  the  least.  In  our  judgment,  the 
construction  given  to  the  Constitution  by  the  authors  of  the  Fed- 
eralist (the  five  numbers  contributed  by  Chief  Justice  Jay  related 
to  the  danger  from  foreign  force  and  influence,  and  to  the  treaty- 
making  power)  should  not  and  cannot  be  disregarded.  .  .  , 
I  Whatever  the  speculative  views  of  political  economists  or  rev- 
1  enue  reformers  may  be,  can  it  be  properly  held  that  the  Constitu- 
tion, taken  in  its  plain  and  obvious  sense,  and  with  due  regard  to 
the  circumstances  attending  the  formation  of  the  government,  au- 
thorizes a  general  unapportioned  tax  on  the  products  of  the  farm 
and  the  rents  of  real  estate,  although  imposed  merely  because  of 
ownership  and  with  no  possible  means  of  escape  from  payment,  as 
belonging  to  a  totally  different  class  from  that  which  includes  the 
property  from  whence  the  income  proceeds? 

There  can  be  only  one  answer,  unless  the  constitutional  restric- 
tion is  to  be  treated  as  utterly  illusory  and  futile,  and  the  object  of 
its  framers  defeated.  We  find  it  impossible  to  hold  that  a  funda- 
mental requisition,  deemed  so  important  as  to  be  enforced  by  two 
provisions,  one  affirmative  and  one  negative,  can  be  refined  away 
by  forced  distinctions  between  that  which  gives  value  to  property 
and  the  property  itself. 
_iJoi»-can  we  conceive  any  ground  why  the  same  reasoning  does 
not  apply  to  capital  in  personalty  held  for  the  purpose  of  income 
or  ordinarily  yielding  income,  and  to  the  income  therefrom.  All 
the  real  esta.te  of  the  country,  and  all  its  invested  personal  property, 
are  open  to  the  direct  operation  of  the  taxing  power  if  an  appor- 
tionment be  made  according  to  the  Constitution.  The  Constitu- 
tion does  not  say  that  no  direct  tax  shall  be  laid  by  apportionment 
on  any  other  property  than  land;  on  the  contrary,  it  forbids  all 
unapportioned  direct  taxes;  and  we  know  of  no  warrant  for  ex- 
cepting personal  property  from  the  exercise  of  the  power,  or  any 
reason  why  an  apportioned  direct  tax  cannot  be  laid  and  assessed, 
as  Mr.  Gallatin  said  in  his  report  when  Secretary  of  the  Treasury 
in  1812,  "upon  the  same  objects  of  taxation  on  which  the  direct 
taxes  levied  under  the  authority  of  the  State  are  laid  and  assessed." 

Nor  are  we  impressed  with  the  argument  that  because  in  the 
four  instances  in  which  the  power  of  direct  taxation  has  been 
exercised.  Congress  did  not  see  fit,  for  reasons  of  expediency,  to 
levy  a  tax  upon  personalty,  this  amounts  to  such  a  practical  con- 
struction of  the  Constitution  that  the  power  did  not  exist,  that 
we  must  regard  ourselves  bound  by  it.  We  should  regret  to  be 
compelled  to  hold  the  powers  of  the  general  government  thus  re- 


POLLOCK  V.  FARMERS'  LOAN  AND  TRUST  CO.  95 

etricted,  and  certainly  cannot  accede  to  the  idea  that  the  Consti- 
tution has  become  weakened  by  a  particular  course  of  inaction 
under  it. 

The  stress  of  the  argument  is  thrown,  however,  on  the  assertion 
that  an  income  tax  is  not  a  property  tax  at  all;  that  it  is  not  a 
real  estate  tax,  nor  a  crop  tax,  nor  a  bond  tax;  that  it  is  an  assess- 
ment upon  the  taxpayer  on  account  of  his  money-spending  power 
as  shown  by  his  revenue  for  the  year  preceding  the  assessment; 
that  rents  received,  crops  harvested,  interest  collected,  have  lost  all 
connection  with  their  origin,  and  although  once  not  taxable  have 
become  transmuted  in  their  new  form  into  taxable  subject-matter; 
in  other  words,  that  income  is  taxable  irrespective  of  the  source 
whence  it  is  derived. 

This  was  the  view  entertained  by  Mr.  Pitt  as  expressed  in  his 
celebrated  speech  on  introducing  his  income-tax  law  of  1799,  and 
he  did  not  hesitate  to  carry  it  to  its  logical  conclusion.  The  Eng- 
lish loan  acts  provided  that  the  public  dividends  should  be  paid 
"free  of  all  taxes  and  charges  whatsoever;"  but  Mr,  Pitt  success- 
fully contended  that  the  dividends  for  the  purposes  of  the  income 
tax  were  to  be  considered  simply  in  relation  to  the  recipient  as  so 
much  income,  and  that  the  holder  had  no  reason  to  complain.  And 
(this,  said  Mr.  Gladstone  fifty-five  years  after,  was  the  rational  con- 
struction of  the  pledge.    Financial  Statements,  33.     .     .     . 

We  have  unanimously  held  in  this  case  that,  so  far  as  this  law 
operates  on  the  receipts  from  municipal  bonds,  it  cannot  be  sus- 
tained, because  it  is  a  tax  on  the  power  of  the  States,  and  on  their 
instrumentalities  to  borrow  money,  and  consequently  repugnant 
to  the  Constitution.  But  if,  as  contended,  the  interest  when  re- 
ceived has  become  merely  money  in  the  recipient's  pocket,  and 
taxable  as  such  without  reference  to  the  source  from  which  it 
came,  the  question  is  immaterial  whether  it  should  have  been 
originally  taxed  at  all  or  not.  This  was  admitted  by  the  Attorney 
General  with  characteristic  candor;  and  it  follows  that,  if  the 
revenue  derived  from  municipal  bonds  cannot  be  taxed  because  the 
source  cannot  be,  the  same  rule  applies  to  revenue  from  any  other 
source  not  subject  to  the  tax;  and  the  lack  of  power  to  levy  any 
but  an  apportioned  tax  on  real  estate  and  personal  property  equally 
exists  as  to  the  revenue  therefrom. 

Admitting  that  this  act  taxes  the  income  of  property  irre- 
spective of  its  source,  still  we  cannot  doubt  that  such  a  tax  is  nec- 
essarily a  direct  tax  in  the  meaning  of  the  Constitution,     .     .     . 

Being  direct,  and  therefore  to  be  laid  by  apportionment,  is  there 
any  real  difficulty  in  doing  so?    Cannot  Congress,  if  the  necessity 


96  CASES   ON   CONSTITUTIONAL  LAW. 

exist  of.  raising  thirty,  forty,  or  any  other  number  of  million  dollars 
for  the  support  of  the  government,  in  addition  to  the  revenue  from 
duties,  imposts,  and  excises,  apportion  the  quota  of  each  State  upon 
the  basis  of  the  census,  and  thus  advise  it  of  the  payment  which 
must  be  made,  and  proceed  to  assess  that  amount  on  all  the  real  or 
personal  property  and  the  income  of  all  persons  in  the  State,  and 
collect  the  same  if  the  State  does  not  in  the  meantime  assume  and 
pay  its  quota  and  collect  the  amount  according  to  i-ts  own  system 
and  in  its  own  way?  Cannot  Congress  do  this  as  respects  either 
or  all  these  subjects  of  taxation,  and  deal  with  each  in  such  man- 
ner as  might  be  deemed  expedient,  as  indeed  was  done  in  the  act 
of  July  14,  1798  (C,  75,  1  Stat.,  597)?  Inconveniences  might 
possibly  attend  the  levy  of  an  income  tax,  notwithstanding  the 
listing  of  receipts,  when  adjusted,  furnishes  its  own  valuation;  but 
that  it  is  apportionable  is  hardly  denied,  although  it  is  asserted 
that  it  would  operate  so  unequally  as  to  be  undesirable. 

In  the  disposition  of  the  inquiry  whether  a  general  unappor- 
tioned  tax  on  the  income  of  real  and  personal  property  can  be  sus- 
tained, under  the  Constitution,  it  is  apparent  that  the  suggestion 
that  'the  result  of  compliance  with  the  fundamental  law  would 
lead  to  the  abandonment  of  that  method  of  taxation  altogether, 
because  of  the  inequalities  alleged  to  necessarily  accompany  its 
pursuit  could  not  be  allowed  to  influence  the  conclusion;  but  the 
suggestion  not  unnaturally  invites  attention  to  the  contention  of 
appeHants'  counsel,  that  the  want  of  uniformity  and  equality  in 
this  act  is  such  as  to  invalidate  it.  Figures  drawn  from  the  census 
are  given,  showing  that  enormous  assets  of  mutual  insurance  com- 
panies; of  building  associations;  of  mutual  savings  banks;  large 
productive  property  of  ecclesiastical  oragnizations;  are  exempted, 
and  it  is  claimed  that  the  exemptions  reach  so  many  hundred 
millions  that  the  rate  of  taxation  would  perhaps  have  been  reduced 
one-half,  if  they  had  not  been  made.  We  are  not  dealing  with  the 
act  from  that  point  of  view;  but,  assuming  the  data  to  be  sub- 
stantially reliable,  if  the  sum  desired  to  be  raised  had  been  appor- 
tioned, it  may  be  doubted  whether  any  State,  which  paid  its  quota 
and  collected  the  amount  by  its  own  methods,  would,  or  could 
under  its  Constitution,  have  allowed  a  large  part  of  the  property 
alluded  to  to  escape  taxation.  If  so,  a  better  measure  of  equality 
would  have  been  attained  than  would  be  otherwise  possible,  since, 
'according  to  the  argument  for  the  government,  the  rule  of  equality 
is  not  prescribed  by  the  Constitution  as  to  Federal  taxation,  and 
the  observance  of  such  a  rule  as  inherent  in  all  just  taxation  is 
purely  a  matter  of  legislative  discretion. 


POLLOCK  V.  FARMERS'  LOAN  AND  TRUST  CO.  97 

Elaborate  argument  is  made  as  to  the  efficacy  and  merits  of  an 
income  tax  in  general,  as  on  the  one  hand,  equal  and  just,  and  on 
the  other,  elastic  and  certain;  not  that  it  is  not  open  to  abuse  by 
such  deductions  and  exemptions  ds  might  make  taxation  under  it 
so  wanting  in  uniformity  and  equality  as  in  substance  to  amount 
to  deprivation  of  property  without  due  process  of  law;  not  that  it 
is  not  open  to  fraud  and  evasion  and  is  inquisitorial  in  its  methods; 
but  because  it  is  pre-eminently  a  tax  upon  the  rich,  and  enables 
the  burden  of  taxes  on  consumption  and  of  duties  on  imports  to 
be  sensibly  diminished.  And  it  is  said  that  the  United  States,  as 
"the  representative  of  an  indivisible  nationality,  as  a  political  sov- 
ereign equal  in  authority  to  any  other  on  the  face  of  the  globe,  to 
all  emergencies,  foreign  or  domestic,  and  having  at  its  command 
for  offense  and  defense  and  for  all  governmental  purposes  all  the 
resources  of  the  nation,"  would  be  "but  a  maimed  and  crippled 
creation  after  all,"  unless  it  possesses  the  power  to  lay  a  tax  on  the 
income  of  real  and  personal  property  throughout  the  United 
States  without  apportionment. 

The  power  to  tax  real  and  personal  property  and  the  income 
from  both,  there  being  an  apportionment,  is  conceded;  that  such  a 
tax  is  a  direct  tax  in  the  meaning  of  the  Constitution  has  not  been, 
and,  in  our  judgment,  cannot  be  successfully  denied;  and  yet  we 
are  thus  invited  to  hesitate  in  the  enforcement  of  the  mandate  of 
the  Constitution  which  prohibits  Congress  from  laying  a  direct  tax 
on  the  revenue  from  property  of  the  citizen  without  regard  to 
State  lines,  and  in  such  manner  that  the  States  cannot  intervene 
by  payment  in  regulation  of  their  own  resources,  lest  a  govern- 
ment of  delegated  powers  should  be  found  to  be,  not  less  powerful, 
but  less  absolute,  than  the  imagination  of  the  advocate  had  sup- 
posed. 

We  are  not  here  concerned  with  the  question  whether  an  income 
tax  be  or  be  not  desirable,  nor  whether  such  a  tax  would  enable 
the  government  to  diminish  taxes  on  consumption  and  duties  on 
imports  and  to  enter  upon  what  may  be  believed  to  be  a  reform 
of  its  fiscal  and  commercial  system.  Questions  of  that  character 
belong  to  the  controversies  of  political  parties,  and  cannot  be  set- 
tled by  judicial  decision.  In  these  cases  our  province  is  to  deter- 
mine whether  this  income  tax  on  the  revenue  from  property  does 
or  does  not  belong  to  the  class  of  direct  taxes.  If  it  does,  it  is, 
being  unapportioned,  in  violation  of  the  Constitution,  and  we 
must  so  declare.     .     .     . 

We  have  considered  -the  act  only  in  respect  of  the  tax  on  income 
7 


98  CASES   ON  CONSTITUTIONAL  LAW. 

derived  from  real  estate,  and  from  invested  personal  property,  and 
have  not  commented  on  so  much  of  it  as  bears  on  gains  or  profits 
from  business,  privileges,  or  employments,  in  view  of  the  instances 
in  which  taxation  on  business,  privileges,  or  employments  has  as- 
sumed the  guise  of  an  excise  tax  and  been  sustained  as  such. 

Being  of  opinion  that  so  much  of  the  sections  of  this  law  as  lays 
a  tax  on  income  from  real  and  personal  property  is  invalid,  we  are 
brought  to  the  question  of  the  effect  of  that  conclusion  upon  these 
sections  as  a  whole. 

It  is  elementary  that  the  same  statute  may  be  in  part  constitu- 
tional and  in  part  unconstitutional,  and  if  the  parts  are  wholly  in- 
dependent of  each  other,  that  which  is  constitutional  may  stand 
while  that  which  is  unconstitutional  will  be  rejected.  And  in  the 
case  before  us  there  is  no  question  as  to  the  validity  of  this  act,  ex- 
cept sections  twenty-seven  to  thirty-seven,  inclusive,  which  relate 
to  the  subject  which  has  been  under  discussion;  and  as  to  them 
we  think  that  the  rule  laid  down  by  Chief  Justice  Shaw  in  Warren 
V.  Charlestown,  2  Gray,  84,  is  applicable,  that  if  the  different  parts 
"are  so  mutually  connected  with  and  dependent  on  each  other,  as 
conditions,  considerations,  or  compensations  for  each  other,  as  to 
warrant  the  belief  that  the  legislature  intended  them  as  a  whole, 
and  that,  if  all  could  not  be  carried  into  effect,  the  legislature 
would  not  pass  the  residue  independently,  and  some  paxts^arejin- 
constitntional,  all  the  provisions  which  are  thus  dependent,  condi- 
tional or  connected,  must  fall  with  them."  Or,  as  the  point  is  put 
by  Mr.  Justice  Matthews  in  Poindexter  v.  Greenhow,  114  U.  S., 
270,  304:  "It  is  undoubtedly  true  that  there  may  be  cases  where 
one  part  of  a  statute  may  be  enforced  as  constitutional,  and  an- 
other be  declared  inoperative  and  void,  because  unconstitutional; 
but  these  are  cases  where  the  parts  are  so  distinctly  separable  that 
each  can  stand  alone,  and  where  the  court  is  able  to  see,  and  to 
declare,  that  the  intention  of  the  legislature,  was  that  the  part 
pronounced  valid  should  be  enforcable,  even  though  the  other 
part  should  fail.  To  hold  otherwise  would  be  to  substitute,  for 
the  law  intended  by  the  legislature,  one  they  may  never  have  been 
willing  by  itself  to  enact."  And  again,  as  stated  by  the  same  emi- 
nent judge  in  Spraigue  v.  Thompson,  118  U.  S.,  90,  95,  where  it 
was  urged  that  certain  illegal  exceptions  in  a  section  of  a  statute 
might  be  disregarded,  but  that  the  rest  could  stand:  "The  insuper- 
able difficulty  with  the  application  of  that  principle  of  construction 
to  the  present  instance  is,  that  by  rejecting  the  exceptions  intended 
by  the  legislature  of  Georgia  the  statute  is  made  to  enact  what 


POLLOCK  V.   FARMERS'  LOAN  AND  TRUST  CO.  99 

confessedly  the  legislature  never  meant.  It  confers  upon  the  stat- 
ute a  positive  operation  beyond  the  legislative  intent,  and  beyond 
what  any  one  can  say  it  would  have  enacted  in  view  of  the  illegality 
of  the  exceptions." 

According  to  the  census,  the  true  valuation  of  real  and  per- 
sonal property  in  the  United  States  in  1890  was  $.65,037,091,197, 
of  which  real  estate  with  improvements  thereon  made  up  $39,- 
544,544,333.  Of  course,  from  the  latter  must  be  deducted,  in  ap- 
plyi-ng  these  sections,  all  unproductive  property  and  all  property 
whose  net  yield  does  not  exceed  four  thousand  dollars;  but,  even 
with  such  deductions,  it  is  evident  that  the  income  from  realty 
formed  a  vital  part  of  the  scheme  for  taxation  embodied  therein. 
If  that  be  stricken  out,  and  also  the  income  from  all  invested 
personal  property,  bonds,  stocks,  investments  of  all  kinds,  it  is 
obvious  that  by  far  the  largest  part  of  the  anticipated  revenue 
would  be  eliminated,  and  this  would  leave  the  burden  of  the  tax 
to  be  borne  by  professions,  trades,  employments,  or  vocations;  and 
in  that  way  what  was  intended  as  a  tax  on  capital  would  remain 
in  substance  a  tax  on  occupations  and  labor.  We  cannot  believe 
that  such  was  the  intention  of  Congress.  We  do  not  mean  to  say 
that  such  an  act  laying  by  apportionment  a  direct  tax  on  all  real 
estate  and  personal  property,  or  the  income  thereof,  might  not 
also  lay  excise  taxes  on  business,  privileges,  employments,  and 
vocations.  But  this  is  not  such  an  act;  and  the  scheme  must  be 
considered  as  a  whole.  Being  invalid  as  to  the  greater  part,  and 
falling,  as  the  tax  would,  if  any  part  were  held  valid,  in  a  direction 
which  could  not  have  been  contemplated  except  in  connection 
with  the  taxation  considered  as  an  entirety,  we  are  constrained  to 
conclude  •  that  sections  twenty-seven  to  thirty-seven,  inclusive,  of 
the  act  which  became  a  law  without  the  signature  of  the  President 
on  August  28,  1894,  are  wholly  inoperative  and  void. 

Our  conclusions  may,  therefore,  be  summed  up  as  follows: 

First.  We  adhere  to  the  opinion  already  announced,  that,  taxes 
on  real  estate  being  indisputably  direct  taxes,  taxes  on  the  rents 
or  incomes  of  real  estate  are  equally  direct  taxes. 

Second.  We  are  of  opinion  that  taxes  on  personal  property_,  or 
on  the  income  of  personal  property,  are  likewise  direct  taxes. 

Third.  The  tax  imposed  by  sections  twenty-seven  to  thirty- 
seven,  inclusive,  of  the  act  of  1894,  so  far  as  it  falls  on  the  income 
of  real  estate  and  of  personal  property,  being  a  direct  tax  within 
the  meaning  of  the  Constitution,  and,  therefore,  unconstitutional 
and  void  because  not  apportioned  according  to  representation,  all 


100  CASES  ON  CONSTITUTIONAL  LAW. 

those  sections,  constituting  one  entire  scheme  of  taxation,  are  nec- 
essarily invalid. 

The  decrees  hereinbefore  entered  in  this  court  will  he  vacated; 
the  decrees  below  will  he  reversed,  and  the  cases  remanded,  with 
instructions  to  grant  the  relief  prayed. 

[Dissenting  opinions  were  delivered  by  Justices  Hablan, 
Beown,  Jackson,  and  White.] 


III.  MONEY. 


CKAIG    ET    AL.    v.    THE    STATE    OF    MISSOUEI. 

4  Peters,  410.    Decided  1830, 
The  case  is  stated  in  the  opinion  of  the  court.     .    .     . 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  Justices 
Thompson,  Johnson,  and  McLean  dissenting. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  court  of 
last  resort,  in  the  State  of  Missouri,  affirming  a  judgment  ob- 
tained by  the  State  in  one  of  its  inferior  courts,  against  Hiram 
Craig  and  others,  on  a  promissory  note.     .     .     . 

The  declaration  is  on  a  promissory  note,  dated  on  the  first  day 
of  August,  1822,  promising  to  pay  to  the  State  of  Missouri,  on  the 
1st  day  of  November,  1822,  at  the  loan  office  in  Chariton,  the  sum 
of  $199.99,  and  the  two  per  cent,  per  annum,  the  interest  ac- 
cruing on  the  certificates  borrowed  from  the  1st  of  October,  1821. 
This  note  is  obviously  given  for  certificates  loaned  under  the  act, 
"for  the  establishment  of  loan  offices."  That  act  directs  that  loans 
on  personal  security  shall  be  made  of  sums  less  than  $200.  This 
note  is  for  $199.99.  The  act  directs  that  the  certificates  issued  by 
the  State  shall  carry  two  per  cent,  interest  from  the  date,  which 
interest  shall  be  calculated  in  the  amount  of  the  loan.  The  note 
promises  to  repay  the  sum  with  the  two  per  cent,  interest  accruing 
on  the  certificates  borrowed  from  the  1st  day  of  October,  1821. 
It  cannot  be  doubted  that  the  declaration  is  on  a  note  given  in 
pursuance  of  the  act  which  has  been  mentioned. 

Neither  can  it  be  doubted  that  the  plea  of  non-assumpsit  al- 
lowed the  defendants  to  draw  into  question  at  the  trial  the  validity 
of  the  consideration  on  which  the  note  was  given.  Everything 
which  disaffirms  the  contract,  everything  which  shows  it  to  be 
void,  may  be  given  in  evidence  on  the  general  issue  in  an  action  of 
assumpsit.  The  defendants,  therefore,  were  at  liberty  to  question 
the  validity  of  the  consideration  which  was  the  foundation  of  the 
contract,  and  the  constitutionality  of  the  law  in  which  it  orig- 
inated.    .    .    . 

101 


102  CASES   ON   CONSTITUTIONAL   LAW. 

This  brings  us  to  the  great  question  in  the  cause:  Is  the  act  of 
the  legislature  of  Missouri  repugnant  to  the  constitution  of  the 
United  States? 

The  counsel  for  the  plaintiffs  in  error  maintain  that  it  is  re- 
pugnant to  the  constitution,  because  its  object  is  the  emission  of 
bills  of  credit,  contrary  to  the  express  prohibition  contained  in 
the  tenth  section  of  the  first  article. 

The  act  under  the  authority  of  which  the  certificates  loaned  to 
the  plaintiffs  in  error  were  issued,  was  passed  on  the  26th  of 
June,  1821,  and  is  entitled  "an  act  for  the  establishment  of  loan- 
offices."  The  provisions  that  are  material  to  the  present  inquiry 
are  comprehended  in  the  third,  thirteenth,  fifteenth,  sixteenth, 
twenty-third,  and  twenty-fourth  sections  of  the  act,  which  are  in 
these  words: 

Section  the  third  enacts,  "that  the  auditor  of  public  accounts 
and  treasurer,  under  the  direction  of  the  governor,  shall,  and  they 
are  hereby  required  to  issue  certificates,  signed  by  the  said  auditor 
and  treasurer,  to  the  amount  of  $200,000,  of  denominations  not 
exceeding  ten  dollars,  nor  less  than  fifty  cents,  (to  bear  such  devices 
as  they  may  deem  the  most  safe,)  in  the  following  fomi,  to  wit: — 
'This  certificate  shall  be  receivable  at  the  treasury,  or  any  of  the 
loan-offices  of  the  State  of  Missouri,  in  the  discharge  of  taxes  or 

debts  due  to  the  State,  for  the  sum  of  $ ,  with  interest  for 

the  same,  at  the  rate  of  two  per  centum  per  annum  from  this  date, 
the day  of ,  182—.'  " 

The  thirteenth  section  declares,  "that  the  certificates  of  the 
said  loan-offices  shall  be  receivable  at  the  treasury  of  the  State, 
and  by  all  tax-gatherers  and  other  public  officers,  in  payment  of 
taxes  or  other  moneys  now  due  to  the  State,  or  to  any  county  or 
town  therein,  and  the  said  certificates  shall  also  be  received  by  all 
officers,  civil  and  military,  in  the  State,  in  the  discharge  of  sala- 
ries and  fees  of  office." 

The  fifteenth  section  provides,  "that  the  commissioners  of  the 
said  loan-offices  shall  have  power  to  make  loans  of  the  said  cer- 
tificates, to  citizens  of  this  State,. residing  within  their  respective 
districts  only,  and  in  each  district  a  proportion  shall  be  loaned  to 
the  citizens  of  each  county  therein,  according  to  the  number 
thereof,"  &c. 

Section  sixteenth.  "That  the  said  commissioners  of  each  of 
the  said  offices  are  further  authorized  to  make  loans  on  personal 
securities,  by  them  deemed  good  and  sufficient,  for  sums  less  than 
two  hundred  dollars;   which  securities  shall  be  jointly  and  sever- 


CRAIG  ET  AL.   v.   STATE   OF  MISSOURI.  103 

ally  bound  for  the  payment  of  the  amount  so  loaned,  with  interest 
thereon,"  &c. 

Section  twenty-third.  **That  the  general  assembly  shall,  as 
soon  as  may  be,  cause  the  salt  springs  and  lands  attached  thereto, 
given  by  congress  to  this  State,  to  be  leased  out;  and  it  shall 
always  be  the  fundamental  condition  in  such  leases,  that  the  lessee 
or  lessees  shall  receive  the  certificates  hereby  required  to  be  issued, 
in  payment  for  salt,  at  a  price  not  exceeding  that  which  may  be 
prescribed  by  law;  and  all  the  proceeds  of  the  said  salt  springs,  the 
interest  accruing  to  the  State,  and  all  estates  purchased  by  officers 
of  the  said  several  offices,  under  the  provisions  of  this  act,  and  all 
the  debts  now  due  or  hereafter  to  be  due  to  this  State,  are  hereby 
pledged  and  constituted  a  fund  for  the  redemption  of  the  certifi- 
cates hereby  required  to  be  issued,  and  the  faith  of  the  State  is 
hereby  also  pledged  for  the  same  purpose." 

Section  twenty-fourth.  "That  it  shall  be  the  duty  of  the  said 
auditor  and  treasurer  to  withdraw  annually  from  circulation,  one- 
tenth  part  of  the  certificates  which  are  hereby  required  to  be 
issued,"  &c. 

The  clause  in  the  constitution  which  this  act  is  supposed  to 
violate  is  in  these  words:  "No  State  shall  .  .  .  emit  bills  of 
credit." 

What  is  a  bill  of  credit?  What  did  the  constitution  mean  to 
forbid? 

In  its  enlarged,  and  perhaps  its  literal  sense,  the  term  "bill  of 
credit"  may  comprehend  any  instrument  by  which  a  State  engages 
to  pay  money  at  a  future  day;  thus  including  a  certificate  given 
for  money  borrowed.  But  the  language  of  the  constitution  itself, 
and  the  mischief  to  be  prevented,  which  we  know  from  the  history 
of  our  country,  equally  limits  the  interpretation  of  the  terms. 
The  word  "emit"  is  never  employed  in  describing  those  contracts 
by  which  a  State  binds  itself  to  pay  money  at  a  future  day  for 
services  actually  received,  or  for  money  borrowed  for  present  use; 
nor  are  instruments  executed  for  such  purposes,  in  common  lan- 
guage, denominated  "bills  of  credit."  To  "emit  bills  of  credit," 
conveys  to  the  mind  the  idea  of  issuing  paper  intended  to  circulate 
through  the  community  for  its  ordinary  purposes,  as  money,  which 
paper  is  redeemable  at  a  future  day.  This  is  the  sense  in  which 
the  terms  have  been  always  understood. 

At  a  very  early  period  of  our  colonial  history,  the  attempt  to 
supply  the  want  of  the  precious  metals  by  a  paper  medium  was 
made  to  a  considerable  extent;  and  the  bills  emitted  for  this  pur- 
pose have  been  frequently  denominated  bills  of  credit.     During 


104  CASES  ON  CONSTITUTIONAL  LAW. 

the  war  of  our  Kevolution,  we  were  driven  to  this  expedient;  and 
necessity  compelled  us  to  use  it  to  a  most  fearful  extent.  The 
term  has  acquired  an  appropriate  meaning;  and  "bills  of  credit" 
signify  a  paper  medium,  intended  to  circulate  between  individuals, 
and  between  government  and  individuals,  for  the  ordinary  pur- 
poses of  society.  Such  a  medium  has  been  always  liable  to  con- 
siderable fluctuation.  Its  value  is  continually  changing;  and  these 
changes,  often  great  and  sudden,  expose  individuals  to  immense 
loss,  are  the  sources  of  ruinous  speculations,  and  destroy  all  confi- 
dence between  man  and  man.  To  cut  up  this  mischief  by  the 
roots,  a  mischief  which  was  felt  through  the  United  States,  and 
which  deeply  affected  the  interest  and  prosperity  of  all,  the  people 
declared  in  their  constitution,  that  no  State  should  emit  bills  of 
credit.  If  the  prohibition  means  anything,  if  the  words  are  not 
empty  sounds,  it  must  comprehend  the  emission  of  any  paper 
medium,  by  a  State  government,  for  the  purpose  of  common  cir- 
culation. 

What  is  the  character  of  the  certificates  issued  by  authority  of 
the  act  under  consideration?  "What  office  are  they  to  perform? 
Certificates  signed  by  the  auditor  and  treasurer  of  the  State,  are 
to  be  issued  by  those  officers  to  the  amount  of  two  hundred  thou- 
sand dollars,  of  denominations  not  exceeding  ten  dollars,  nor  less 
than  fifty  cents.  The  paper  purports  on  its  face  to  be  receivable 
at  the  treasury,  or  at  any  loan  office  of  the  State  of  Missouri,  in 
discharge  of  taxes  or  debts  due  to  the  State. 

The  law  makes  them  receivable  in  discharge  of  all  taxes,  or 
debts  due  to  the  State,  or  any  county  or  town  therein;  and  of  all 
salaries  and  fees  of  office,  to  all  officers  civil  and  military  within 
the  State;  and  for  salt  sold  by  the  lessees  of  the  public  salt  works. 
It  also  pledges  the  faith  and  funds  of  the  State  for  their  re- 
demption. 

It  seems  impossible  to  doubt  the  intention  of  the  legislature  in 
passing  this  act,  or  to  mistake  the  character  of  these  certificates, 
or  the  office  they  were  to  perform.  The  denominations  of  the  bills, 
from  ten  dollars  to  fifty  cents,  fitted  them  for  the  purpose  of  or- 
dinary circulation;  and  their  reception  in  payment  of  taxes,  and 
debts  to  the  government  and  to  corporations,  and  of  salaries  and 
fees,  would  give  them  currency.  They  were  to  be  put  into  circu- 
lation; that  is,  emitted  by  the  government.  In  addition  to  all 
these  evidences  of  an  intention  to  make  these  certificates  the  or- 
dinary circulating  medium  of  the  country,  the  law  speaks  of  them 
in  this  character;  and  directs  the  auditor  and  treasurer  to  with- 
draw annually  one-tenth  of  them  from  circulation.     Had  they 


CRAIG   ET  AL.   v.    STATE   OF  MiSSOUKI.  105 

been  termed  "bills  of  credit,"  instead  of  "certificates,"  nothing 
would  have  been  wanting  to  bring  them  within  the  prohibitory 
words  of  the  constitution. 

And  can  this  make  any  real  difference?  Is  the  proposition  to 
be  maintained,  that  the  constitution  meant  to  prohibit  names  and 
not  things?  That  a  very  important  act,  big  with  great  and  ruin- 
ous mischief,  which  is  expressly  forbidden  by  words  most  appropri- 
ate for  its  description,  may  be  performed  by  the  substitution  of  a 
name?  That  the  constitution,  in  one  of  its  most  important  pro- 
visions, may  be  openly  evaded  by  giving  a  new  name  to  an  old 
thing?  We  cannot  think  so.  We  think  the  certificates  emitted 
under  the  authority  of  this  act  are  as  entirely  bills  of  credit  as  if 
they  had  been  so  denominated  in  the  act  itself. 

But  it  is  contended,  that  though  these  certificates  should  be 
deemed  bills  of  credit,  according  to  the  common  acceptation  of 
the  term,  they  are  not  so  in  the  sense  of  the  constitution;  because 
they  are  not  made  a  legal  tender. 

The  constitution  itself  furnishes  no  countenance  to  this  distinc- 
tion. The  prohibition  is  general.  It  extends  to  all  bills  of  credit, 
not  to  bills  of  a  particular  description.  That  tribunal  must  be 
bold,  indeed,  which,  without  the  aid  of  other  explanatory  words, " 
could  venture  on  this  construction.  It  is  the  less  admissible  in 
this  case,  because  the  same  clause  of  the  constitution  contains  a 
substantive  prohibition  to  the  enactment  of  tender  laws.  The 
constitution,  therefore,  considers  the  emission  of  bills  of  credit, 
and  the  enactment  of  tender  laws,  as  distinct  operations,  inde- 
pendent of  each  other,  which  may  be  separately  performed.  Both 
are  forbidden.  To  sustain  the  one,  because  it  is  not  also  the  other; 
to  S'ay  that  bills  of  credit  may  be  emitted,  if  they  be  not  made  a 
tender  in  payment  of  debts, — is,  in  effect,  to  expunge  that  distinct 
independent  prohibition,  and  to  read  the  clause  as  if  it  had  been 
entirely  omitted.    We  are  not  at  liberty  to  do  this. 

The  history  of  paper  money  has  been  referred  to,  for  the  pur- 
pose of  showing  that  its  great  mischief  consists  in  being  made  a 
tender;  and  that  therefore  the  general  words  of  the  constitution 
may  be  restrained  to  a  particular  intent. 

Was  it  even  true,  that  the  evils  of  paper  money  resulted  solely 
from  the  quality  of  its  being  made  a  tender,  this  court  would 
not  feel  itself  authorized  to  disregard  the  plain  meaning  of  words, 
in  search  of  a  conjectural  intent  to  which  we  are  not  conducted 
by  the  language  of  any  part  of  the  instrument.  But  we  do  not 
think  that  the  history  of  our  country  proves  either,  that  being 
made  a  tender  in  pa3Tnent  of  debts  is  an  essential  quality  of  bills 


106  CASES   ON   CONSTITUTIONAL  LAW. 

of  credit,  or  the  only  mischief  resulting  from  them.  It  may, 
indeed,  be  the  most  pernicious;  but  that  will  not  authorize  a 
court  to  convert  a  general  into  a  particular  prohibition. 

We  learn  from  Hutchinson's  History  of  Massachusetts,  vol.  i., 
p.  402,  that  bills  of  credit  were  emitted  for  the  first  time  in  that 
colony  in  1690.  An  army  returning  unexpectedly  from  an  expedi- 
tion against  Canada,  which  had  proved  as  disastrous  as  the  plan 
was  magnificent,  found  the  government  totally  unprepared  to 
meet  their  claims.  Bills  of  credit  were  resorted  to,  for  relief  from 
this  embarrassment.  They  do  not  appear  to  have  been  made  a 
tender;  but  they  were  not  on  that  account  the  less  bills  of  credit, 
nor  were  they  absolutely  harmless.  The  emission,  however,  not 
being  considerable,  and  the  bills  being  soon  redeemed,  the  experi- 
ment would  have  been  productive  of  not  much  mischief,  had  it 
not  been  followed  by  repeated  emissions  to  a  much  larger  amount. 
The  subsequent  history  of  Massachusetts  abounds  with  proofs  of 
the  evils  with  which  paper  money  is  fraught,  whether  it  be  or  be 
not  a  legal  tender. 

Paper  money  was  also  issued  in  other  colonies,  both  in  the  North 
and  South  and  whether  made  a  tender  or  not,  was  productive 
of  evils  in  proportion  to  the  quantity  emitted.  In  the  war  which 
commenced  in  America  in  1755,  Virginia  issued  paper  money  at 
several  successive  sessions,  under  the  appellation  of  treasury  notes. 
This  was  made  a  tender.  Emissions  were  afterwards  made  in  1769. 
in  1771,  and  in  1773.  These  were  not  made  a  tender;  but  they 
circulated  together;  were  equally  bills  of  credit;  and  were  pro- 
ductive of  the  same  effects.  In  1775  a  considerable  emission  was 
made  for  the  purposes  of  the  war.  The  bills  were  declared  to  be 
current  but  were  not  made  a  tender.  In  1776  an  additional  emis- 
sion was  made,  and  the  bills  were  declared  to  be  a  tender.  The 
bills  of  1775  and  1776  circulated  together;  were  equally  bills 
of  credit;  and  were  productive  of  the  same  consequences. 

Congress  emitted  bills  of  credit  to  a  large  amount;  and  did  not, 
perhaps  could  not,  make  them  a  legal  tender.  This  power  resided 
in  the  States.  In  May,  1777,  the  legislature  of  Virginia  passed 
an  act  for  the  first  time  making  the  bills  of  credit  issued  under 
the  authority  of  congress-  a  tender  so  far  as  to  extinguish  interest. 
It  was  not  until  March,  1781,  that  Virgiiiia  passed  an  act  making 
all  the  bills  of  credit  which  had  been  emitted  by  congress,  and  all 
of  which  had  been  emitted  by  the  State,  a  legal  tender  in  payment 
of  debts.  Yet  they  were  in  every  sense  of  the  word  bills  of  credit, 
previous  to  that  time;  and  were  productive  of  all  the  consequences 
of  paper  money.    "We  cannot  then  assent  to  the  proposition,  that 


CRAIG   ET  AL.  v.   STATE   OF  MISSOURI.  107 

the  history  of  our  country  furnishes  any  just  argument  in  favor 
of  that  restricted  construction  of  the  constitution,  for  which  the 
counsel  for  the  defendant  in  error  contends. 

The  certificates  for  which  this  note  was  given,  being  in  truth 
"bills  of  credit"  in  the  sense  of  the  constitution,  we  are  brought 
to  the  inquiry: — Is  the  note  valid  of  which  they  form  the  con- 
sideration? 

It  has  been  long  settled,  that  a  promise  made  in  consideration 
'  of  an  act  which  is  forbidden  by  law  is  void.  It  will  not  be  ques- 
tioned, that  an  act  forbidden  by  the  constitution  of  the  United 
States,  which  is  the  supreme  law,  is  against  law.  Now  the  consti- 
tution forbids  a  State  to  "emit  bills  of  credit."  The  loan  of  these 
certificates  is  the  very  act  which  is  forbid(Jfen.  It  is  not  the  mak- 
ing of  them  while  they  lie  in  the  loan  offices;  but  the  issuing  of 
them,  the  putting  them  into  circulation,  which  is  the  act  of 
emission,  the  act  that  is  forbidden  by  the  constitution.  The  con- 
sideration of  this  note  is  the  emission  of  bills  of  credit  by  the 
State.  The  very  act  which  constitutes  the  consideration,  is  the 
act  of  emitting  bills  of  credit,  in  the  mode  prescribed  by  the  law 
of  Missouri;  which  act  is  prohibited  by  the  constitution  of  the 
United  States. 

Cases  which  we  cannot  distinguish  from  this  in  principle  have 
been  decided  in  state  courts  of  great  respectability;  and  in  this 
court.  .  .  .  [Here  follow  statements  of  Springfield  Bank  v. 
Merrick  et  al.,  14  Mass.  Eep.,  322;  Hunt  v.  Knickerbocker,  5 
Johns.,  327,  and  Patton  v.  Nicholson,  3  Wheaton,  204.] 

A  majority  of  the  court  feels  constrained  to  say  that  the  consid- 
eration on  which  the  note  in  this  case  was  given,  is  against  the 
highest  law  of  the  land,  and  that  the  note  itself  is  utterly  void. 
In  rendering  judgment  for  the  plaintiff,  the  court  for  the  State 
of  Missouri  decided  in  favor  of  the  validity  of  a  law  which  is 
repugnant  to  the  constitution  of  the  United  States. 

In  the  argument,  we  have  been  reminded  by  one  side  of  the 
dignity  of  a  sovereign  State,  of  the  humiliation  of  her  submitting 
herself  to  this  tribunal,  of  the  dangers  which  may  result  from 
inflicting  a  wound  on  that  dignity;  by  the  other,  of  the  still 
superior  dignity  of  the  people  of  the  United  States,  who  have 
spoken  their  will  in  terms  which  we  cannot  misunderstand. 

To  these  admonitions,  we  can  only  answer:  that  if  the  exercise 
of  that  jurisdiction  which  has  been  imposed  upon  us  by  the  con- 
stitution and  laws  of  the  United  States,  shall  be  calculated  to  bring 
on  those  dangers  which  have  been  indicated;  or  if  it  shall  be  in- 
dispensable to  the  preservation  of  the  Union,  and  consequently 


\ 


108  CASES   ON  CONSTITUTIONAL   LAW. 

of  the  independence  and  liberty  of  these  States;  these  are  con- 
siderations which  address  themselves  to  those  departments  which 
may  with  perfect  propriety  be  influenced  by  them.  This  depart- 
ment can  listen  only  to  the  mandates  of  law,  and  can  tread  only 
that  path  which  is  marked  out  by  duty. 

The  judgment  of  the  Supreme  Court  of  the  State  of  Missouri 
for  the  first  judicial  district  is  reversed,  and  the  cause  remanded, 
with  directions  to  enter  judgment  for  the  defendants. 

[Justices  Johxsox,  Thompson,  and  McLean  delivered  dis- 
senting opinions.] 


JOHIf  BRISCOE  AND  OTHERS  v.  THE  PRESIDENT  AND 
DIRECTORS  OF  THE  BANK  OF  THE  COMMON- 
WEALTH OF  KENTUCKY. 

11  Peters,  257.    Decided  1837. 
The  case  is  stated  in  the  opinion  of  the  court.    •.     .     . 

[cLean,  J.,  delivered  the  opinion  of  the  court. 

This  case  is  brought  before  this  court,  by  a  writ  of  error  from 
the  court  of  appeals  of  the  State  of  Kentucky,  under  the  25th 
section  of  the  Judiciary  act  of  1789.^ 

An  action  was  commenced  by  the  Bank  of  the  Commonwealth 
of  Kentucky,  against  the  plaintiffs  in  error,  in  the  Mercer 
Circuit  Court  of  Kentucky,  on  a  note  for  $2,048.37,  payable 
to  the  president  and  directors  of  the  bank;  and  the  defendants 
filed  two  special  pleas,  in  the  first  of  which  oyer  was  prayed  of 
the  note  on  which  suit  was  brought,  and  they  say  that  the  plaint- 
iff ought  not  to  have,  &c.,  because  the  note  was  given  on  the 
renewal  of  a  like  note,  given  to  the  said  bank;  and  they  refer 
to  the  act  establishing  the  bank,  and  allege  that  it  never  received 
any  part  of  the  capital  stock  specified  in  the  act;  that  the  bank 
was  authorized  to  issue  bills  of  credit,  on  the  faith  of  the  State, 
in  violation  of  the  constitution  of  the  United  States.  That,  by 
various  statutes,  the  notes  issued  were  made  receivable  in  dis- 
charge of  executions,  and  if  not  so  received,  the  collection  of  the 
money  should  be  delayed,  &c.;  and  the  defendants  aver  that  the 
note  was  given  to  the  bank  on  a  loan  of  its  bills,  and  that  the 
consideration,  being  illegal,  was  void. 

1 1  Stat,  at  Large,  85. 


BRISCOE  ET  AL.  v.  BANK  OF  KENTUCKY.  109 

The  second  plea  presents,  substantially,  the  same  facts.  To 
both  the  pleas  a  general  demurrer  was  filed;  and  the  court  sus- 
tained the  demurrer,  and  gave  judgment  in  favor  of  the  bank. 
This  judgment  was  removed,  by  appeal,  to  the  court  of  appeals, 
which  is  the  highest  court  of  judicature  in  the  State,  where  the 
judgment  of  the  circuit  court  was  affirmed;  and  being  brought 
before  this  court  by  writ  of  error,  the  question  is  presented  whether 
the  notes  issued  by  the  bank  are  bills  of  credit,  emitted  by  the 
State,  in  violation  of  the  constitution  of  the  United  States. 

This  cause  is  approached,  under  a  full  sense  of  its  magnitude. 
Important  as  have  been  the  great  questions  brought  before  this 
tribunal  for  investigation  and  decision,  none  have  exceeded,  if  they 
have  equaled,  the  importance  of  that  which  arises  in  this  case. 
The  amount  of  property  involved  in  the  principle  is  very  large; 
but  this  amount,  however  great,  could  not  give  to  the  case  the 
deep  interest  which  is  connected  with  its  political  aspect.     .     .     . 

The  definition  of  the  terms  bills  of  credit,  as  used  in  the  con- 
stitution, is  the  first  requisite  in  the  investigation  of  this  subject. 
.  .  .  The  terms  bills  of  credit  in  their  mercantile  sense,  com- 
prehend a  great  variety  of  evidence  of  debt,  which  circulate  in 
a  commercial  country.  In  the  early  history  of  banks,  it  seems 
their  notes  were  generally  denominated  bills  of  credit;  but  in 
modern  times  they  have  lost  that  designation;  and  are  now  called, 
either  bank  bills,  or  bank  notes. 

But  the  inhibition  of  the  constitution  applies  to  bills  of  credit, 
in  a  more  limited  sense. 

It  would  be  difficult  to  classify  the  bills  of  credit  which  were 
issued  in  the  early  history  of  this  country.  They  were  all  designed 
to  circulate  as  money,  being  issued  under  the  laws  of  the  respective 
colonies,  but  the  forms  were  various  in  the  different  colonies,  and 
often  in  the  same  colony. 

In  some  cases  they  were  payable  with  interest,  in  others  with- 
out interest.  Funds  arising  from  certain  sources  of  taxation  were 
pledged  for  their  redemption,  in  some  instances;  in  others  they 
were  issued  without  such  a  pledge.  They  were  sometimes  made 
a  legal  tender,  at  others  not.  In  some  instances,  a  refusal  to  receive 
them  operated  as  a  discharge  of  the  debt;  in  others,  a  postpone- 
ment of  it. 

They  were  sometimes  payable  on  demand;  at  other  times,  at 
some  future  period.  At  all  times  the  bills  were  receivable  for 
taxes,  and  in  payment  of  debts  due  to  the  public;  except,  perhaps, 
in  some, instances,  where  they  had  become  so  depreciated  as  to  be  of 
little  or  no  value. 


110  CASES   ON   CONSTITUTIONAL   LAW. 

These  bills  were  frequently  issued  by  committees,  and  sometimes 
by  an  officer  of  the  government,  or  an  individual  designated  for 
that  purpose. 

The  bills  of  credit  emitted  by  the  States,  during  the  Revolution, 
and  prior  to  the  adoption  of  the  constitution,  were  not  very  dis- 
similar from  those  which  the  colonies  had  been  in  the  practice  of 
issuing.  There  were  some  characteristics  which  were  common  to 
all  these  bills.  They  were  issued  by  the  colony  or  State,  and  on 
its  credit.  For  in  cases  where  funds  were  pledged,  the  bills  were 
to  be  redeemed  at  a  future  period,  and  gradually  as  the  means 
of  redemption  should  accumulate.  In  some  instances,  congress 
guaranteed  the  payment  of  bills  emitted  by  a  State. 

They  were,  perhaps,  never  convertible  into  gold  and  silver,  im- 
mediately on  their  emission;  as  they  were  issued  to  supply  the 
pressing  pecuniary  wants  of  the  government,  their  circulating  as 
money  was  indispensable.  The  necessity  which  required  their 
emission  precluded  the  possibility  of  their  immediate  redemption. 

In  the  case  of  Craig  et  al.  v.  The  State  of  Missouri,  4  Peters, 
410,  this  court  was  called  upon,  for  the  first  time,  to  determine 
what  constituted  a  bill  of  credit,  within  the  meaning  of  the  Con- 
stitution. A  majority  of  the  judges  in  that  case,  in  the*  language 
of  the  Chief  Justice,  say,  that  "bills  of  credit  signify  a  paper 
medium,  intended  to  circulate  between  individuals,  and  between 
government  and  individuals,  for  the  ordinary  purposes  of  society." 

A  definition  so  general  as  this  would  certainly  embrace  every 
description  of  paper  which  circulates  as  money. 

Two  of  the  dissenting  judges,  on  that  occasion,  gave  a  more  defi- 
nite, though,  perhaps,  a  less  accurate  meaning,  of  the  terms  bills 
of  credit. 

By  one  of  them  it  was  said,  "a,  bill  of  credit  may,  therefore, 
be  considered  a  bill  drawn  and  resting  merely  on  the  credit  of  the 
drawer,  as  contradistinguished  from  a  fund  constituted  or  pledged 
for  the  payment  of  the  bill."  And  in  the  opinion  of  the  other, 
it  is  said,  "to  constitute  a  bill  of  credit,  within  the  meaning  of 
the  constitution,  it  must  be  issued  by  a  State,  and  its  circulation, 
as  money,  enforced  by  statutory  provisions.  It  must  contain  a 
promise  of  payment  by  the  State  generally,  when  no  fund  has  been 
appropriated  to  enable  the  holder  to  convert  it  into  money.  It 
must  be  circulated  on  the  credit  of  the  State;  not  that  it  will  be 
paid  on  presentation,  but  that  the  State,  at  some  future  period, 
on  a  time  fixed  or  resting  in  its  own  discretion,  will  provide  for 
the  payment." 

These  definitions  cover  a  large  class  of  the  bills  of  credit  issued 


BRISCOE  ET  AL.  v.  BANK  OF  KENTUCKY.  Ill 

and  circulated  as  money,  but  there  are  classes  which  they  do  not 
embrace;  and  it  is  believed  that  no  definition,  short  of  a  descrip- 
tion of  each  class,  would  be  entirely  free  from  objection;  unless 
it  be  in  the  general  terms  used  by  the  venerable  and  lamented 
chief  justice. 

The  definition,  then,  which  does  include  all  classes  of  bills  of 
credit  emitted  by  the  colonies  or  States,  is  a  paper  issued  by  the 
sovereign  power,  containing  a  pledge  of  its  faith,  and  designed  to 
circulate  as  money. 

Having  arrived  at  this  point,  the  next  inquiry  in  the  case  is 
whether  the  notes  of  the  Bank  of  the  Commonwealth  were  bills 
of  credit  within  the  meaning  of  the  constitution. 

The  first  section  of  the  charter  provides,  that  the  bank  shall 
be  established  in  the  name  and  behalf  of  the  commonwealth  of 
Kentucky,  under  the  direction  of  a  president  and  twelve  directors 
to  be  chosen  by  joint  ballot  of  both  houses  of  the  general  assembly, 
&c.  .  .  .  [The  second  section  provides  for  the  incorporation 
of  these  persons  with  the  usual  powers.]  In  the  third  section  it  is 
declared,  that  the  stock  of  the  bank  shall  be  exclusively  the  prop- 
erty of  the  commonwealth  of  Kentucky,  and  that  no  individual 
shall  own  any  part  of  it.  The  fourth  section  authorizes  the  presi- 
dent and  directors  to  issue  notes,  &c.;  and  in  the  fifth  section  it 
is  declared,  that  the  capital  stock  shall  be  $3,000,000,  to  be  paid 
as  follows:  "All  moneys  hereafter  paid  into  the  treasury  for  the 
purchase  of  the  vacant  land  of  the  commonwealth;  all  moneys 
paid  into  the  treasury  for  the  purchase  of  land  wai rants;  all 
moneys  received  for  the  sale  of  vacant  lands  west  of  the  Tennes- 
see Eiver,  and  so  much  of  the  capital  stock  owned  by  the  State  in 
the  Bank  of  Kentucky;"  and  as  the  treasurer  of  the  State  re- 
ceived these  moneys  from  time  to  time,  he  was  required  to  pay 
the  same  into  the  bank.  .  .  .  Certain  limitations  were  im- 
posed on  loans  to  individuals,  and  the  accommodations  of  the  bank 
were  to  be  apportioned  among  the  different  counties  of  the  State. 
The  president  was  required  to  make  a  report  to  each  session  of 
the  legislature.  The  notes  were  to  be  made  payable  in  gold  and 
silver,  and  were  receivable  in  payment  of  taxes  and  other  debts 
due  to  the  State.  All  mortgages  executed  to  the  bank,  gave  io  it 
a  priority.  By  a  supplementary  act  it  was  provided  that  the  presi- 
dent and  directors  might  issue  $3,000,000.  In  1821,  an  act  was 
passed  authorizing  the  treasurer  of  the  State  to  receive  the  divi- 
dends of  the  bank. 

The  notes  issued  by  the  bank  were  in  the  usual  form  of  bank 
notes,  in  which  the  Bank  of  the  Commonwealth  promised  to  pay 


112  CASES   ON  CONSTITUTIONAL   LAW. 

to  the  bearer  on  demand  the  sum  specified  on  the  face  of  the  note. 

There  is  no  evidence  of  any  part  of  the  capital  having  been 
paid  into  the  bank;  and  as  the  pleas,  to  which  the  demurrers  were 
filed,  aver  that  no  part  of  the  capital  was  paid,  the  fact  averred 
is  admitted  on  the  record. 

It  is  to  be  regretted  that  any  technical  point  arising  on  the 
pleadings  should  be  relied  on  in  this  case,  which  involves  princi- 
ples and  interests  of  such  deep  importance.  Had  the  bank  pleaded 
over  and  stated  the  amount  actually  paid  into  it  by  the  State, 
under  the  charter,  the  ground  on  which  it  stands  would  have  been 
strengthened.     .     .     . 

On  the  part  of  the  plaintiffs  in  error,  it  is  contended,  that  the 
provisions  in  the  constitution  that  "no  State  shall  coin  money," 
"emit  bills  of  credit,"  or  "make  anything  but  gold  and  silver  coin 
a  tender  in  payment  of  debts,"  are  three  distinct  powers  which 
are  inhibited  to  the  State;  and  that  if  the  bills  of  the  Bank  of 
the  Commonwealth  were  substantially  made  a  tender,  by  an  act 
of  the  legislature  of  Kentucky,  it  must  be  fatal  to  the  action 
of  the  bank  in  this  case.     ... 

But  the  main  grounds  on  which  the  counsel  for  the  plaintiffs 
rely  is  that  the  Bank  of  the  Commonwealth,  in  emitting  the  bills 
in  question,  acted  as  the  agent  of  the  State;  and  that,  conse- 
quently, the  bills  were  issued  by  the  State.  That,  as  a  State 
is  prohibited  from  issuing  bills  of  credit,  it  cannot  do  indirectly 
what  it  is  prohibited  from  doing  directly.  That  the  constitution 
intended  to  place  the  regulation  of  the  currency  under  the  control 
of  the  federal  government;  and  that  the  act  of  Kentucky  is  not 
only  in  violation  of  the  spirit  of  the  constitution,  but  repugnant 
to  its  letter.  These  topics  have  been  ably  discussed  at  the  bar  and 
in  a  printed  argument  on  behalf  of  the  plaintiffs. 

That  by  the  constitution  the  currency,  so  far  as  it  is  com^ 
posed  of  gold  and  silver,  is  placed  under  the  exclusive  control  of 
congress  is  clear;  and  it  is  contended  from  the  inhibition  on  the 
States  to  emit  bills  of  credit,  that  the  paper  medium  was  intended 
to  be  made  subject  to  the  same  power.  If  this  argument  be  cor- 
rect, and  the  position  that  a  State  cannot  do  indirectly  what  it  is 
prokibited  from  doing  directly  be  a  sound  one,  then  it  must  fol- 
low, as  a  necessary  consequence,  that  all  banks  incorporated  by 
a  State  are  unconstitutional.  And  this,  in  the  printed  argument, 
is  earnestly  maintained,  though  it  is  admitted  not  to  be  neces- 
sary to  sustain  the  ground  assumed  for  the  plaintiffs.  The  coun- 
sel of  the  plaintiffs,  who  have  argued  the  case  at  the  bar,  do  not 
carry  the  argument  to  this  extent. 


BRISCOE  ET  AL.  v.  BANK  OF  KENTUCKY.  113 

This  doctrine  is  startling,  as  it  strikes  a  fatal  blow  against  the 
State  banks,  which  have  a  capital  of  near  four  hundred  millions 
of  dollars,  and  which  supply  almost  the  entire  circulating  medium 
of  the  country.  But  let  us  for  a  moment  examine  it  dispassion- 
ately. 

The  federal  government  is  one  of  delegated  powers.  All  powers 
not  delegated  to  it,  or  inhibited  to  the  S-tates,  are  reserved  to  the 
States  or  to  the  people.  A  State  cannot  emit  bills  of  credit;  or, 
in  other  words,  it  cannot  issue  that  description  of  paper  to  answer 
the  purposes  of  money,  which  was  denominated,  before  the  adop- 
tion of  the  constitution,  bills  of  credit.  But  a  State  may  grant 
acts  of  incorporation  for  the  attainment  of  those  objects  which  are 
essential  to  the  interests  of  society.  This  power  is  incident  to 
sovereignty;  and  there  is  no  limitation  in  the  federal  constitution 
on  its  exercise  by  the  States,  in  respect  to  the  incorporation  of 
banks. 

At  the  time  the  constitution  was  adopted,  the  Bank  of  North 
America,  and  the  Massachusetts  Bank,  and  some  others,  were  in 
operation.  It  cannot,  therefore,  be  supposed  that  the  notes  of  these 
banks  were  intended  to  be  inhibited  by  the  constitution,  or  that 
they  were  considered  as  bills  of  credit  within  the  meaning  of  that 
instrument.  In  fact,  in  many"  of  their  most  distinguishing  char- 
acteristics, they  were  essentially  different  from  bills  of  credit,  in 
any  of  the  various  forms  in  which  they  were  issued. 

If,  then,  the  powers  not  delegated  to  the  federal  government, 
nor  denied  to  the  States,  are  retained  by  the  States  or  the  people, 
and  by  a  fair  construction  of  the  terms  bills  of  credit,  as  used 
in  the  constitution,  they  do  not  include  ordinary  bank  notes,  does 
it  not  follow  that  the  power  to  incorporate  banks  to  issue  these 
notes  may  be  exercised  by  a  State?  A  uniform  course  of  action, 
involving  the  right  to  the  exercise  of  an  important  power  by  the 
^tate  governments  for  half  a  century,  and  this  almost  without 
question,  is  no  unsatisfactory  evidence  that  the  power  is  rightfully 
exercised.  But  this  inquiry,  though  embraced  in  the  printed 
argument,  does  not  belong  to  the  case,  and  is  abandoned  at  the 
bar. 

A  State  cannot  do  that  which  the  federal  constitution  declares 
it  shall  not  do.  It  cannot  coin  money.  Here  is  an  act  inhibited 
in  terms  so  precise  that  they  cannot  be  mistaken.  They  are  sus- 
ceptible of  but  one  construction.  And  it  is  certain  that  a  State 
cannot  incorporate  any  number  of  individuals,  and  authorize  them 
to  coin  money.  Such  an  act  would  be  as  much  a  violation  of  the 
constitution  as  if  the  money  were  coined  by  an  officer  of  the  State, 
8 


114  CASES   ON   CONSTITUTIONAL   LAW. 

under  its  authority.  The  act,  being  prohibited,  cannot  be  done 
by  a  State  either  directly  or  indirectly. 

And  the  same  rule  applies  as  to  the  emission  of  bills  of  credit 
by  a  State.  The  terms  used  here  are  less  specific  than  those  which 
relate  to  coinage.  Whilst  no  one  can  mistake  the  latter,  there  are 
great  differences  of  opinion  as  to  the  construction  of  the  former. 
If  the  terms  in  each  case  were  equally  definite  and  were  susceptible 
of  but  one  construction,  there  could  be  no  more  difficulty  in 
applying  the  rule  in  the  one  case  than  in  the  other. 

The  weight  of  the  argument  is  admitted,  that  a  State  cannot, 
by  any  device  that  may  be  adopted,  emit  bills  of  credit.  But  the 
question  arises,  what  is  a  bill  of  credit  within  the  meaning  of  the 
constitution?  On  the  answer  to  this  must  depend  the  constitu- 
tionality or  unconstitutionality  of  the  act  in  question. 

A  State  can  act  only  through  its  agents;  and  it  would  be  absurd 
to  say  that  any  act  was  not  done  by  a  State  which  was  done  by  its 
authorized  agents. 

To  constitute  a  bill  of  credit  within  the  constitution,  it  must 
be  issued  by  a  State,  on  the  faith  of  the  State,  and  be  designed 
to  circulate  as  money.  It  must  be  a  paper  which  circulates  on 
the  credit  of  the  State;  and  is  so  received  and  used  in  the  ordi- 
nary business  of  life. 

The  individual  or  committee  who  issue  the  bill  must  have  the 
power  to  bind  the  State;  they  must  act  as  agents;  and  of  course 
do  not  incur  any  personal  responsibility,  nor  impart,  as  individ- 
uals, any  credit  to  the  paper.  These  are  the  leading  characteris- 
tics of  a  bill  of  credit,  which  a  State  cannot  emit.     .     .     . 

Were  these  notes  issued  by  the  State? 

Upon  their  face,  they  do  not  purport  to  be  issued  by  the  State, 
but  by  the  president  and  directors  of  the  bank.  They  promise  to 
pay  to  bearer  on  demand  the  sums  stated.  Were  they  issued  on 
the  faith  of  the  State?  The  notes  contain  no  pledge  of  the  faith 
of  the  State  in  any  form.  They  purport  to  have  been  issued  on  the 
credit  of  the  funds  of  the  bank,  and  must  have  been  so  received  in 
the  community.. 

But  these  funds,  it  is  said,  belonged  to  the  State;  and  the  prom- 
ise to  pay  on  the  face  of  the  notes  was  made  by  the  president  and 
directors  as  agents  of  the  State.  They  do  not  assume  to  act  as 
agents,  and  there  is  no  law  which  authorizes  them  to  bind  the 
State.  As  in,  perhaps,  all  bank  charters,  they  had  the  power  to 
issue  a  certain  amount  of  notes;  but  they  determined  the  time 
and  circumstances  which  should  regulate  these  issues. 

When  a  State  emits  bills  of  credit,  the  amount  to  be  issued  is 


BRISCOE  ET  AL.  v.  BANK  OF  KENTUCKY.  115 

fixed  by  law,  as  also  for  the  fund  out  of  which  they  are  to  be  paid)  if 
any  fund  be  pledged  for  their  redemption;  and  they  are  issued  on 
the  credit  of  the  State,  which  in  some  form  appears  upon  the  face 
of  the  notes,  or  by  the  signature  of  the  person  who  issues  them. 

As  to  the  funds  of  the  Bank  of  the  Commonwealth,  they  were, 
in  part  only,  derived  from  the  State.  The  capital,  it  is  true,  was 
to  be  paid  by  the  State;  but  in  making  loans,  the  bank  was  re- 
quired to  take  good  securities;  and  these  constituted  a  fund,  to 
which  the  holders  of  the  notes  could  look  for  payment,  and  which 
could  be  made  legally  responsible. 

In  this  respect  the  notes  of  this  bank  were  essentially  different 
from  any  class  of  bills  of  credit  which  are  believed  to  have  been 
issued. 

The  notes  were  not  payable  in  gold  and  silver  on  demand,  but 
there  was  a  fund,  and,  in  all  probability,  a  sufficient  fund,  to 
redeem  them.  This  fund  was  in  possession  of  the  bank,  and  under 
the  control  of  the  president  and  directors.  But  whether  the  fund 
was  adequate  to  the  redemption  of  the  notes  issued  or  not,  is  im- 
material to  the  present  inquiry.  It  is  enough  that  the  fund  ex- 
isted, independent  of  the  State,  and  was  sufficient  to  give  some 
degree  of  credit  to  the  paper  of  the  bank. 

The  question  is  not  whether  the  Bank  of  the  Commonwealth  had 
a  large  capital  or  a  small  one,  or  whether  its  notes  were  in  good 
credit  or  bad,  but  whether  they  were  issued  by  the  State,  and 
on  the  faith  and  credit  of  the  State.  The  notes  were  received 
in  payment  of  taxes,  and  in  discharge  of  all  debts  to  the  State; 
and  this,  aided  by  the  fund  arising  from  notes  discounted,  with 
prudent  management,  under  favorable  circumstances,  might  have 
sustained,  and  it  is  believed  did  sustain  to  a  considerable  extent, 
the  credit  of  the  bank.  The  notes  of  this  bank  which  are  still 
in  circulation  are  equal  in  value,  it  is  said,  to  specie. 

But  there  is  another  quality  which  distinguished  these  notes 
from  bills  of  credit.  Every  holder  of  them  could  not  only  look 
to  the  funds  of  the  bank  for  payment,  but  he  had  in  his  power 
the  means  of  enforcing  it. 

The  bank  could  be  sued;  and  the  records  of  this  court  show 
that  while  its  paper  was  depreciated,  a  suit  was  prosecuted  to 
judgment  against  it  by  a  depositor,  and  who  obtained  from  the 
bank,  it  is  admitted,  the  full  amount  of  his  judgment  in  specie. 
.  .  .  [Here  follows  a  description  of  bills  issued  by  Maryland 
and  South  Carolina.] 

If  the  leading  properties  of  the  notes  of  the  Bank  of  the  Com- 
monwealth were  essentially  different  from  any  of  the  numerous 


116  CASES  ON  CONSTITUTIONAL   LAW. 

classes  of  bills  of  credit,  issued  by  the  States  or  colonies;  if  they 
I  were  not  emitted  by  the  State,  nor  upon  its  credit,  but  on  the 
credit  of  the  funds  of  the  bank;  if  they  were  payable  in  gold 
and  silver  on  demand,  and  the  holder  could  sue  the  bank;  and  if 
to  constitute  a  bill  of  credit,  it  must  be  issued  by  a  State,  and  on 
the  credit  of  the  State,  and  the  holder  could  not,  by  legal  means, 
compel  the  payment  of  the  bill,  how  can  the  character  of  these 
two  descriptions  of  paper  be  considered  as  identical?  They  were 
both  circulated  as  money;  but  in  name,  in  form,  and  in  sub- 
stance, they  differ. 

It  is  insisted  that  the  principles  of  this  case  were  settled  in 
the  suit  of  Craig  et  al.  v.  The  State  of  Missouri.     .     .     , 

In  that  case  the  court  decided  that  the  following  paper,  issued 
under  a  legislative  act  of  Missouri,  was  a  bill  of  credit  within  the 
meaning  of  the  constitution: — 

"This  certificate  shall  be  receivable  at  the  treasun',  or  any  of 
the  loan  offices  of  the  State  of  Missouri,  in  the  discharge  of  taxes 
or  debts  due  to  the  States,  in  the  sum  of  dollars,  with 

interest  for  the  same,  at  the  rate  of  two  per  cent,  per  annum 
from  the  date."     .     .     . 

It  is  only  necessary  to  compare  these  certificates  with  the  notes 
issued  by  the  Bank  of  the  Commonwealth  to  see  that  no  two 
things  which  have  any  property  in  common  could  be  more  unlike. 
They  both  circulated  as  money,  and  were  receivable  on  public 
account;  but  in  every  other  particular  they  were  essentially  dif- 
ferent. 

If  to  constitute  a  bill  of  credit  either  the  form  or  substance 
of  the  Missouri  certificate  is  requisite,  it  is  clear  that  the  notes 
of  the  Bank  of  the  Commonwealth  cannot  be  called  bills  of  credit. 
To  include  both  papers  under  one  designation  would  confound  the 
most  important  distinctions,  not  only  as  to  their  form  and  sub- 
stance, but  also  as  to  their  origin  and  effect. 

There  is  no  principle  decided  by  the  court  in  the  case  of  Craig 
v.  The  State  of  Missouri  which  at  all  conflicts  with  the  views  here 
presented.  Indeed  the  views  of  the  court  are  sustained  and 
strengthened  by  contrasting  the  present  case  with  that  one.  The 
State  of  Kentucky  is  the  exclusive  stockholder  in  the  Bank  of 
the  Commonwealth:  but  does  this  fact  change  the  character  of 
the  corporation?  Does  it  make  the  bank  identical  with  the  State? 
And  are  the  operations  of  the  bank  the  operations  of  the  State? 
Is  the  bank  the  mere  instrument  of  the  sovereignty  to  effectuate 
its  designs;  and  is  the  State  responsible  for  its  acts?  The  answer 
to  these  inquiries  will  be  given  in  the  language  of  this  court,  used 


BRISCOE  ET  AL.  v.  BANK  OF  KENTUCKY.  117 

in  former  adjudications.  .  .  .  [Here  follow  extracts  from 
Bank  of  the  United  States  v.  The  Planters'  Bank,  9  Wheat.,  904, 
and  Bank  of  the  Commonwealth  of  Kentucky  v.  Wistar,  3  Peters, 
431.] 

These  extracts  cover  almost  every  material  point  raised  in  this 
investigation.  They  show  that  a  State,  when  it  becomes  a  stock- 
holder in  a  bank,  imparts  none  of  its  attributes  of  sovereignty 
to  the  institution;  and  that  this  is  equally  the  case,  whether 
it  own  a  whole  or  a  part  of  the  stock  of  the  bank. 

It  is  admitted  by  the  counsel  for  the  plaintiffs  that  a  State  may 
become  a  stockholder  in  a  bank;  but  they  contend  that  it  cannot 
become  the  exclusive  owner  of  the  stock.  They  give  no  rule  by 
which  the  interest  of  a  State  in  such  an  institution  shall  be  grad- 
uated, nor  at  what  point  the  exact  limit  shall  be  fixed.  May  a 
State  own  one-fourth,  one-half,  or  three-fourths  of  the  stock?  If 
the  proper  limit  be  exceeded,  does  the  charter  become  unconsti- 
tutional; and  is  its  constitutionality  restored  if  the  State  recede 
within  the  limit?  The  court  are  as  much  at  a  loss  to  fix  the 
supposed  constitutional  boundary  of  this  right  as  the  counsel  can 
possibly  be. 

If  the  State  must  stop  short  of  owning  the  entire  stock,  the 
precise  point  may  surely  be  ascertained.  It  cannot  be  supposed 
that  so  important  a  constitutional  principle  as  contended  for  exists 
without  limitation.  If  a  State  may  own  a  part  of  the  stock  of  a 
bank,  we  know  of  no  principle  which  prevents  it  from  owning  the 
whole.  As  a  stockholder,  in  the  language  of  this  court,  above 
cited,  it  can  exercise  no  more  power  in  the  affairs  of  the  corpora- 
tion than  is  expressly  given  by  the  incorporating  act.  It  has  no 
more  power  than  any  other  stockholder  to  the  same  extent. 

This  court  did  not  consider  that  the  character  of  the  incorpora- 
tion was  at  all  affected  by  the  exclusive  ownership  of  the  stock  by 
the  State.  And  they  say  that  the  case  of  the  Planters'  Bank  pre- 
sented stronger  ground  of  defense  than  the  suit  against  the  Bank 
of  the  Commonwealth.  That  in  the  former  the  State  of  Georgia 
was  not  only  a  proprietor  but  a  corporator;  and  that  in  the  latter 
the  president  and  directors  constituted  the  corporate  body.  And 
yet  in  the  case  of  the  Planters'  Bank  the  court  decided  the  State 
could  only  be  considered  as  an  ordinary  corporator,  both  as  it 
regarded  its  powers  and  responsibilities. 

If  these  positions  be  correct,  is  there  not  an  end  to  this  con- 
troversy? If  the  Bank  of  the  Commonwealth  is  not  the  State, 
nor  the  agent  of  the  State;  if  it  possess  no  more  power  than  is 
given  to  it  in  the  act  of  incorporation;   and  precisely  the  same  as 


118  CASES   ON  CONSTITUTIONAL   LAW. 

if  the  stock  were  owned  by  private  individuals,  how  can  it  be  con- 
tended that  the  notes  of  the  bank  can  be  called  bills  of  credit  in 
contradistinction  from  the  notes  of  other  banks?  If,  in  becom- 
ing an  exclusive  stockholder  in  this  bank  the  State  imparts  to  it 
none  of  its  attributes  of  sovereignty;  if  it  holds  the  stock  as  any 
other  stockholder  would  hold  it,  how  can  it  be  said  to  emit  bills 
of  credit?  Is  it  not  essential  to  constitute  a  bill  of  credit  within 
the  constitution  that  it  should  be  emitted  by  a  State?  Under  its 
charter  the  bank  has  no  power  to  emit  bills  which  have  the  impress 
of  the  sovereignty  or  which  contain  a  pledge  of  its  faith.  It  is  a 
simple  corporation,  acting  within  the  sphere  of  its  corporate 
powers,  and  can  no  more  transcend  them  than  any  other  banking 
institution.  The  State,  as  a  stockholder,  bears  the  same  relation 
to  the  bank  as  any  other  stockholder. 

The  funds  of  the  bank  and  its  property,  of  every  description,  are 
held  responsible  for  the  payment  of  its  debts,  and  may  be  reached 
by  legal  or  equitable  process.  In  this  respect,  it  can  claim  no 
exemption  under  the  prerogatives  of  the  Siates.  And,  if  in  the 
course  of  its  operations  its  notes  have  depreciated  like  the  notes 
of  other  banks  under  the  pressure  of  circumstances,  still  it  must 
stand  or  fall  by  its  charter.  In  this  its  powers  are  defined;  and 
its  rights,  and  the  rights  of  those  who  give  credit  to  it,  are  guar- 
anteed. And  even  an  abuse  of  its  powers,  through  which  its 
credit  has  been  impaired  and  the  community  injured,  cannot 
be  considered  in  this  case. 

We  are  of  the  opinion  that  the  act  incorporating  the  Bank 
of  the  Commonwealth  was  a  constitutional  exercise  of  power  by 
the  State  of  Kentucky,  and,  consequently,  that  the- notes  issued 
by  the  bank  are  not  bills  of  credit  within  the  meaning  of  the 
federal  constitution.  The  judgment  of  the  court  of  appeals  is, 
therefore,  affirmed,  with  interest  and-  costs.     .     .     . 

[Mr.  Justice  Thompson  delivered  a  concurring  opinion,  and 
Mr.  Justice  Story  a  dissenting  one.] 


HEPBUEl^  V.  GEISWOLD. 
8  Wallace,  603.    Decided  1870. 

Error  to  the  Court  of  Appeals  of  Kentucky,  the  case  being  this: 

On  the  20th  of  June,  1860,  a  certain  Mrs.  Hepburn  made  a 

promissory  note,  by  which  she  promised  to  pay  to  Henry  Gris- 


HEPBURN  V.  GRISWOLD.  119 

wold  on  the  30th  of  February,  1862,  eleven  thousand  two  hun- 
dred and  fifty  "dollars." 

At  the  time  when  the  note  was  made,  as  also  at  the  time  when 
it  fell  due,  there  was,  confessedly,  no  lawful  money  of  the  United 
States,  or  money  which  could  lawfully  be  tendered  in  payment 
of  private  debts,  but  gold  and  silver  coin. 

Five  days  after  the  day  when  the  note  by  its  terms  fell  due,  that 
is  to  say,  on  the  25th  of  February,  1862,  in  an  exigent  crisis  of 
the  nation,  in  which  the  government  was  engaged  in  putting 
down  an  armed  rebellion  of  vast  magnitude.  Congress  passed  an 
act  authorizing  the  issue  of  $150,000,000  of  its  own  notes,^  and 
enacted  in  regard  to  them,  by  one  clause  in  the  first  section  of 
the  act,  as  follows: 

"And  such  notes,  herein  authorized,  shall  be  receivable  in  pay- 
ment of  all  taxes,  internal  duties,  excises,  debts,  and  demands  of 
every  kind  due  to  the  United  States,  except  duties  on  imports, 
and  of  all  claims  and  demands  against  the  United  States  of  every 
kind  whatsoever,  exce^  for  interest  upon  bonds  and  notes,  which 
shall  be  paid  in  coin;  and  shall  also  be  lawful  money  and  a  legal 
tender  in  payment  of  all  debts,  public  and  private,  within  the 
United  States,  except  duties  on  imports  and  interest  as  aforesaid." 

The  note  given  by  Mrs.  Hepburn  not  being  paid  at  maturity, 
interest  accrued  on  it.  And  in  March,  1864,  suit  having  been 
brought  on  the  note  in  the  Louisville  Chancery  Court,  she  ten- 
dered in  United  States  notes  issued  under  the  act  mentioned 
$12,720,  the  amount  of  principal  of  the  note  with  the  interest 
accrued  to  the  date  of  tender,  and  some  costs  in  satisfaction  of 
the  plaintiff's  claim.  The  tender  was  refused.  The  notes  were 
then  tendered  and  paid  into  court;  and  the  chancellor,  "resolv- 
ing all  doubts  in  favor  of  Congress,"  declared  the  tender  good  and 
adjudged  the  debt,  interest  and  costs  to  be  satisfied  accordingly. 

The  case  was  then  taken  by  Griswold  to  the  Court  of  Errors  of 
Kentucky,  which  reversed  the  chancellor's  Judgment,  and  remand- 
ed the  case  with  instructions  to  enter  a  contrary  Judgment. 

From  the  Judgment  of  the  Court  of  Errors  of  Kentucky,  the 
case  was  brought  by  Mrs.  Hepburn  here.     .     .     . 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

The  question  presented  for  our  determination  by  the  record 
in  this  case  is,  whether  or  not  the  payee  or  assignee  of  a  note, 
made  before  the  25th  of  February,  1862,  is  obliged  by  law  to 

1  For   the  general   form  of  the    notes,  see  7  Wallace,  26. 


120  CASES   ON  CONSTITUTIONAL   LAW. 

accept  in  payment  United  States  notes,  equal  in  nominal  amount 
to  the  sum  due  according  to  its  terms,  when  tendered  by  the 
maker  or  other  party  bound  to  pay  it?  And  this  requires,  in  the 
firs-t  place,  a  construction  of  that  clause  of  the  first  section 
of  the  act  of  Congress  passed  on  that  day,  which  declares 
the  United  States  notes,  the  issue  of  which  was  authorized  by  the 
statute,  to  be  a  legal  tender  in  payment  of  debts.  The  clause  has 
already  received  much  consideration  here,  and  this  court  has 
held  that,  upon  a  sound  construction,  neither  taxes  imposed  by 
State  legislation,^  nor  demands  upon  contracts  which  stipulate 
in  terms  for  the  delivery  of  coin  or  bullion,^  are  included  by  legis- 
lative intention  under  the  description  of  debts  public  and  private. 
"We  are  now  to  determine  whether  this  description  embraces  debts 
contracted  before  as  well  as  after  the  date  of  the  act. 

It  is  an  established  rule  for  the  construction  of  statutes,  that 
the  terms  employed  by  the  legislature  are  not  to  receive  an  inter- 
pretation which  conflicts  with  acknowledged  principles  of  justice 
and  equity,  if  another  sense,  consonant  with  those  principles,  can 
be  given  to  them.  But  this  rule  cannot  prevail  where  the  intent 
is  clear.  Except  in  the  scarcely  supposable  case  where  a  statute 
sets  at  naught  the  plainest  precepts  of  morality  and  social  obliga- 
tion, courts  must  give  effect  to  the  clearly  ascertained  legislative 
intent,  if  not  repugnant  to  the  fundamental  law  ordained  in  the 
Constitution. 

Applying  the  rule  Just  stated  to  the  act  under  consideration, 
there  appears  to  be  strong  reason  for  construing  the  word  debts 
as  having  reference  only  to  debts  contracted  subsequent  to  the 
enactment  of  the  law.  For  no  one  will  question  that  the  United 
States  notes,  which  the  act  makes  a  legal  tender  in  payment,  are 
essentially  unlike  in  nature,  and,  being  irredeemable  in  coin,  are 
necessarily  unlike  in  value,  to  the  lawful  money  intended  by  par- 
ties to  contracts  for  the  payment  of  money  made  before  its  pas- 
sage. The  lawful  money  then  in  use  and  made  a  legal  tender  in 
payment,  consisted  of  gold  and  silver  coin.  The  currency  in  use 
under  the  act,  and  declared  by  its  terms  to  be  lawful  money  and 
a  legal  tender,  consists  of  notes  or  promises  to  pay  impressed  upon 
paper,  prepared  in  convenient  form  for  circulation,  and  protected 
against  counterfeiting  by  suitable  devices  and  penalties.  The 
former  possess  intrinsic  value,  determined  by  the  weight  and 
fineness  of  the  metal;  the  latter  have  no  intrinsic  value,  but  a 
purchasing  value,  determined  by  the  quantity  in  circulation,  by 

2  Lane  County  v.  Oregon,  7  Wal-  3  Bronson  v.  Redes,  7  Id.,  229; 
lace,  71.  Butler  v.  Horwitz,  lb.,  258. 


HEPBURN  V.  GRISWOLD.  .  121 

general  consent  to  its  currency  in  payments,  and  by  opinion  as  to 
the  probability  of  redemption  in  coin.  Both  derive,  in  different 
degrees,  a  certain  additional  value  from  their  adaptation  to  cir- 
culation by  the  form  and  impress  given  to  them  under  national 
authority,  and  from  the  acts  making  them  respectively  a  legal 
tender. 

Contracts  for  the  payment  of  money,  made  before  the  act  of 
1862,  had  reference  to  coined  money,  and  could  not  be  discharged, 
unless  by  consent,  otherwise  than  by  tender  of  the  sum  due  in 
coin.  Every  such  contract,  therefore,  was,  in  legal  import,  a  con- 
tract for  the  payment  of  coin. 

There  is  a  well-known  law  of  currency,  that  notes  or  promises 
to  pay,  unless  made  conveniently  and  promptly  convertible  into 
coin  at  the  will  of  the  holder,  can  never,  except  under  unusual 
and  abnormal  conditions,  be  at  par  in  circulation  with  coin.  It 
is  an  equally  well  known  law,  that  depreciation  of  notes  must  in- 
crease with  the  increase  of  the  quantity  put  in  circulation  and  the 
diminution  of  confidence  in  the  ability  or  disposition  to  redeem. 
Their  appreciation  follows  the  reversal  of  these  conditions.  No 
act  making  them  a  legal  tender  can  change  materially  the  opera- 
tion of  these  laws.  Their  force  has  been  strikingly  exemplified 
in  the  history  of  the  United  States  notes.  Beginning  with  a  very 
slight  depreciation  when  first  issued,  in  March,  1862,  they  sank 
in  July,  1864,  to  the  rate  of  two  dollars  and  eighty-five  cents  for 
a  dollar  in  gold,  and  then  rose  until  recently  a  dollar  and  twenty 
cents  in  paper  became  equal  to  a  gold  dollar. 

Admitting,  then,  that  prior  contracts  are  within  the  intention 
of  the  act,  and  assuming  that  the  act  is  warranted  by  the  Con- 
stitution, it  follows  that  the  holder  of  a  promissory  note,  made  be- 
fore the  act,  for  a  thousand  dollars,  payable,  as  we  have  just  seen, 
according  to  the  law  and  according  to  the  intent  of  the  parties,  in 
coin,  was  required,  when  depreciation  reached  its  lowest  point, 
to  accept  in  payment  a  thousand  note  dollars,  although  with  the 
thousand  coin  dollars,  due  under  the  contract,  he  could  have  pur- 
chased on  that  day  two  thousand  eight  hundred  and  fifty  such 
dollars.  .  Every  payment,  since  the  passage  of  the  act,  of  a  note 
of  earlier  date,  has  presented  similar,  though  less  striking  features. 

Now,  it  certainly  needs  no  argument  to  prove  that  an  act,  com- 
pelling acceptance  in  satisfaction  of  any  other  than  stipulated  pay- 
ment, alters  arbitrarily  the  terms  of  the  contract,  and  impairs  its 
obligation,  and  that  the  extent  of  impairment  is  in  the  proportion 
of  the  inequality  of  the  payment  accepted  under  the  constraint 
of  the  law  to  the  payment  due  under  the  contract.     Nor  does  it 


123  CASES   ON  CONSTITUTIONAL   LAW. 

need  argument  to  prove  that  the  practical  operation  of  such  an 
act  is  contrary  to  justice  and  equity.  It  follows  that  no  construc- 
tion which  attributes  such  practical  operation  to  an  act  of  Congress 
is  to  be  favored,  or  indeed  to  be  admitted,  if  any  other  can  be 
reconciled  with  the  manifest  intent  of  the  legislature. 

What,  then,  is  that  manifest  intent?  Are  we  at  liberty,  upon 
a  fair  and  reasonable  construction  of  the  act,  to  say  that  Con- 
gress meant  that  the  word  "debts"  used  in  the  act  should  not  in- 
clude debts  contracted  prior  to  its  passage? 

In  the  case  of  Bronson  v.  Rodes,  we  thought  ourselves  war- 
ranted in  holding  that  this  word,  as  used  in  the  statute,  does  not 
include  obligations  created  by  express  contracts  for  the  payment 
of  gold  and  silver,  whether  coined  or  in  bullion.  This  conclusion 
rested,  however,  mainly  on  the  terms  of  the  act,  which  not  only 
allow,  but  require  payments  in  coin  by  or  to  the  government,  and 
may  be  fairly  considered,  independently  of  considerations  belonging 
to  the  law  of  contracts  for  the  delivery  of  specified  articles,  as  sanc- 
tioning special  private  contracts  for  like  paj'ments;  without  which, 
indeed,  the  provisions  relating  to  government  payments  could 
hardly  have  practical  effect.  This  consideration,  however,  does 
not  apply  to  the  matter  now  before  us.  There  is  nothing  in  the 
terms  of  the  act  which  looks  to  any  difference  in  its  operation  on 
different  descriptions  of  debts  payable  generally  in  money, — that 
is  to  say,  in  dollars  and  parts  of  a  dollar.  These  terms,  on  the 
contrary,  in  their  obvious  import,  include  equally  all  debts  not 
specially  expressed  to  be  payable  in  gold  or  silver,  whether  arising 
under  past  contracts  and  already  due,  or  arising  under  such  con- 
tracts and  to  become  due  at  a  future  day,  or  arising  and  becoming 
due  under  subsequent  contracts.  A  strict  and  literal  construc- 
tion indeed  would,  as  suggested  by  Mr.  Justice  Story  (1  Story  on 
the  Constitution,  §  921),  in  respect  to  the  same  word  used  in  the 
Constitution,  limit  the  word  "debts"  to  debts  existing;  and  if  this 
construction  cannot  be  accepted  because  the  limitation  sanctioned 
by  it  cannot  be  reconciled  with  the  obvious  scope  and  purpose 
of  the  act,  it  is  certainly  conclusive  against  any  interpretation 
which  will  exclude  existing  debts  from  its  operation.  The  same 
conclusion  results  from  the  exception  of  interest  on  loans  and 
duties  on  imports  from  the  effect  of  the  legal  tender  clause.  This 
exception  affords  an  irresistible  implication  that  no  description 
of  debts,  whenever  contracted,  can  be  withdrawn  from  the  effect 
of  the  act  if  not  included  within  the  terms  or  the  reasonable  in- 
tent of  the  exception.  And  it  is  worthy  of  observation  in  this  con- 
nection, that  in  all  the  debates  to  which  the  act  gave  occasion  in 


HEPBURN  V.  GRISWOLD.  123 

Congress,  no  suggestion  was  ever  made  that  the  legal  tender  clause 
did  not  apply  as  fully  to  contracts  made  before  as  to  contracts 
made  after  its  passage. 

These  considerations  seem  to  us  conclusive.  We  do  not  think 
ourselves  at  liberty,  therefore,  to  say  that  Congress  did  not  intend 
to  make  the  notes  authorized  by  it  a  legal  tender  in  payment  of 
debts  contracted  before  the  passage  of  the  act. 

We  are  thus  brought  to  the  question,  whether  Congress  has 
power  to  make  notes  issued  under  its  authority  a  legal  tender  in 
payment  of  debts,  which,  when  contracted,  were  payable  by  law 
in  gold  and  silver  coin. 

The  delicacy  and  importance  of  this  question  has  not  been  over- 
stated in  the  argument.  This  court  always  approaches  the  con- 
sideration of  questions  of  this  nature  reluctantly;  and  its  constant 
rule  of  decision  has  been,  and  is,  that  acts  of  Congress  must  be 
regarded  as  constitutional,  unless  clearly  shown  to  be  otherwise. 

But  tjie  Constitution  is  the  fundamental  law  of  the  United 
States.  By  it  the  people  have  created  a  government,  defined  its 
powers,  prescribed  their  limits,  distributed  them  among  the  dif- 
ferent departments,  and  directed,  in  general,  the  manner  of  their 
exercise.  No  department  of  the  government  has  any  other  powers 
than  those  thus  delegated  to  it  by  the  people.  All  the  legislative 
power  granted  by  the  Constitution  belongs  to  Congress;  but  it  has 
no  legislative  power  which  is  not  thus  granted.  And  the  same  ob- 
servation is  equally  true  in  its  application  to  the  executive  and 
judicial  powers  granted  respectively  to  the  President  and  the 
courts.  All  these  powers  differ  in  kind,  but  not  in  source  or  in 
limitation.  They  all  arise  from  the  Constitution,  and  are  limited 
by  its  terms. 

It  is  the  function  of  the  judiciary  to  interpret  and  apply  the 
law  to  cases  between  parties  as  they  arise  for  judgment.  It  can 
only  declare  what  the  law  is,  and  enforce  by  proper  process  the 
law  thus  declared.  But,  in  ascertaining  the  respective  rights  of 
parties,  it  frequently  becomes  necessary  to  consult  the  Consti- 
tution, For  there  can  be  no  law  inconsistent  with  the  funda- 
mental law.  No  enactment  not  in  pursuance  of  the  authority 
conferred  by  it  can  create  obligations  or  confer  rights.  For  such 
is  the  express  declaration  of  the  Constitution  itself  in  these  words: 

"The  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land;   and  the  judges  of  every  State  shall 


124  CASES   ON  CONSTITUTIONAL   LAW. 

be  bound  thereby,  anything  in  the  Constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding." 

Not  every  act  of  Congress,  then,  is  to  be  regarded  as  the  su- 
preme law  of  the  land;  nor  is  it  by  every  act  of  Congress  that  the 
judges  are  bound.  This  character  and  this  force  belong  only  to 
such  acts  as  are  "made  in  pursuance  of  the  Constitution." 

When,  therefore,  a  case  arises  for  judicial  determination,  and 
the  decision  depends  on  the  alleged  inconsistency  of  a  legislative 
provision  with  the  fundamental  law,  it  is  the  plain  duty  of  the 
court  to  compare  the  act  with  the  Constitution,  and  if  the  former 
cannot,  upon  a  fair  construction,  be  reconciled  with  the  latter, 
to  give  effect  to  the  Constitution  rather  than  the  statute.  This 
seems  so  plain  that  it  is  impossible  to  make  it  plainer  by  argu- 
ment. If  it  be  otherwise,  the  Constitution  is  not  the  supreme  law; 
it  is  neither  necessary  or  useful,  in  any  case,  to  inquire  whether 
or  not  any  act  of  Congress  was  passed  in  pursuance  of  it;  and  the 
oath  which  every  member  of  this  court  is  required  to  t^^e,  that 
he  "will  administer  justice  without  respect  to  persons,  and  do  equal 
right  to  the  poor  and  the  rich,  and  faithfully  perform  the  duties 
incumbent  upon  him  to  the  best  of  his  ability  and  understanding, 
agreeably  to  the  Constitution  and  laws  of  the  United  States,"  be- 
comes an  idle  and  unmeaning  form. 

The  case  before  us  is  one  of  private  right.  The  plaintiff  in  the 
court  below  sought  to  recover  of  the  defendants  a  certain  sum 
expressed  on  the  face  of  a  promissory  note.  The  defendants  in- 
sisted on  the  right,  under  the  act  of  February  25th,  1862,  to  acquit 
themselves  of  their  obligation  by  tendering  in  payment  a  sum  nom- 
inally equal  in  United  States  notes.  But  the  note  had  been  exe- 
cuted before  the  passage  of  the  act,  and  the  plaintiff  insisted  on 
his  right  under  the  Constitution  to  be  paid  the  amount  due  in 
gold  and  silver.  And  it  has  not  been,  and  cannot  be,  denied  that 
the  plaintiff  was  entitled  to  judgment  according  to  his  claim,  unless 
bound  by  a  constitutional  law  to  accept  the  notes  as  coin. 

Thus  two  questions  were  directly  presented:  Were  the  defend- 
ants relieved  by  the  act  from  the  obligation  assumed  in  the  eon- 
tract?  Could  the  plaintiff  be  compelled,  by  a  judgment  of  the 
court,  to  receive  in  payment  a  currency  of  different  nature  and 
value  from  that  which  was  in  the  contemplation  of  the  parties 
when  the  contract  was  made? 

The  Court  of  Appeals  resolved  both  questions  in  the  negative, 
and  the  defendants,  in  the  original  suit,  seek  the  reversal  of  that 
judgment  by  writ  of  error. 

It  becomes  our  duty,  therefore,  to  determine  whether  the  act  of 


HEPBURN  V.  GRISWOLD.  125 

February  25,  1862,  so  far  as  it  makes  United  States  notes  a  legal 
tender  in  payment  of  debts  contracted  prior  to  its  passage,  is 
constitutional  and  valid  or  otherwise.  Under  a  deep  sense  of  our 
obligation  to  perform  this  duty  to  the  best  of  our  ability  and 
understanding,  we  shall  proceed  to  dispose  of  the  case  presented 
by  the  record. 

We  have  already  said,  and  it  is  generally,  if  not  universally,  con- 
ceded, that  the  government  of  the  United  States  is  one  of  limited 
powers,  and  that  no  department  possesses  any  authority  not  granted 
by  the  Constitution. 

It  is  not  necessary,  however,  in  order  to  prove  the  existence  of 
a  particular  authority,  to  show  a  particular  and  express  grant.  The 
design  of  the  Constitution  was  to  establish  a  government  competent 
to  the  direction  and  administration  of  the  affairs  of  a  great  nation, 
and,  at  the  same  time,  to  mark,  by  sufficiently  definite  lines,  the 
sphere  of  it^  operations.  To  this  end  it  was  needful  only  to  make 
express  grants  of  general  powers,  coupled  with  a  further  grant  of 
such  incidental  and  auxiliary  powers  as  might  be  required  for  the 
exercise  of  the  powers  expressly  granted.  These  powers  are  neces- 
sarily extensive.  It  has  been  found,  indeed,  in  the  practical  ad- 
ministration of  the  government,  that  a  very  large  part,  if  not  the 
largest  part,  of  its  functions  have  been  performed  in  the  exercise 
of  powers  thus  implied. 

But  the  extension  of  power  by  implication  was  regarded  with 
some  apprehension  by  the  wise  men  who  framed,  and  by  the  intelli- 
gent citizens  who  adopted,  the  Constitution.  This  apprehension 
is  manifest  in  the  terms  by  which  the  grant  of  incidental  and  auxil- 
iary powers  is  made.  All  powers  of  this  nature  are  included  under 
the  description  of  "power  to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  the  powers  expressly  granted  to  Congress 
or  vested  by  the  Constitution  in  the  government  or  in  any  of  its 
departments  or  officers." 

The  same  apprehension  is  equally  apparent  in  the  tenth  article 
of  the  amendments,  which  declares  that  "the  powers  not  delegated 
to  the  United  States  by  the  Constitution,  nor  prohibited  by  it  to 
the  States,  are  reserved  to  the  States  or  the  people." 

"We  do  not  mean  to  say  that  either  of  these  constitutional  provi- 
sions is  to  be  taken  as  restricting  any  exercise  of  power  fairly  war- 
ranted by  legitimate  derivation  from  one  of  the  enumerated  or 
express  powers.  The  first  was  undoubtedly  introduced  to  exclude 
all  doubt  in  respect  to  the  existence  of  implied  powers;  while  the 
words  "necessary  and  proper"  were  intended  to  have  a  "sense,". 
to  use  the  words  of  Mr.  Justice  Story,  "at  once  admonitory  and 


126  CASES   ON  CONSTITUTIONAL   LAW. 

directory,"  and  to  require  that  the  means  used  in  the  execution 
of  an  express  power  "should  be  bona  fide  appropriate  to  the  end."^ 
The  second  provision  was  intended  to  have  a  like  admonitory  and 
directory  sense,  and  to  restrain  the  limited  government  established 
under  the  Constitution  from  the  exercise  of  powers  not  clearly 
delegated,  or  derived  by  just  inference  from  powers  so  delegated. 

It  has  not  been  maintained  in  argument,  nor  indeed,  would 
any  one,  however  slightly  conversant  with  constitutional  law,  think 
of  maintaining  that  there  is  in  the  Constitution  any  express  grant 
of  legislative  power  to  make  any  description  of  credit  currency 
a  legal  tender  in  payment  of  debts.  We  must  inquire  then 
whether  this  can  be  done  in  the  exercise  of  an  implied  power. 

The  rule  for  determining  whether  a  legislative  enactment  can 
be  supported  as  an  exercise  of  an  implied  power  was  stated  by 
Chief  Justice  Marshall,  speaking  for  the  whole  court,  in  the  case 
of  McCullough  V.  The  State  of  Maryland,^  and  the  statement  then 
.made  has  ever  since  been  accepted  as  a  correct  exposition  of  the 
Constitution.  His  words  were  these:  "Let  the  end  be  legitimate, 
let  it  be  within  the  scope  of  the  Constitution,  and  all  means  which 
are  appropriate,  which  are  plainly  adapted  to  that  end,  which  are 
not  prohibited,  but  consistent  with  the  letter  and  spirit  of  the 
Constitution,  are  constitutional."  And  in  another  part  of  the  same 
opinion  the  practical  application  of  this  rule  was  thus  illustrated: 
"Should  Congress,  in  the  execution  of  its  powers,  adopt  measures 
which  are  prohibited  by  the  Constitution,  or  should  Congress, 
under  the  pretext  of  executing  its  powers,  pass  laws  for  the  accom- 
plishment of  objects  not  intrusted  to  the  government,  it  would  be 
the  painful  duty  of  this  tribunal,  should  a  case  requiring  such  a 
decision  come  before  it,  to  say  that  such  an  act  was  not  the  law 
of  the  land.  But  where  the  law  is  not  prohibited,  and  is  really 
calculated  to  effect  any  of  the  objects  intrusted  to  the  govern- 
ment, to  undertake  here  to  inquire  into  the  degree  of  its  necessity 
would  be  to  pass  the  line  which  circumscribes  the  judicial  depart- 
ment, and  tread  on  legislative  ground."' 

It  must  be  taken  then  as  finally  settled,  so  far  as  judicial  deci- 
sions can  settle  anything,  that  the  words  "all  laws  necessary  and 
proper  for  carrying  into  execution"  powers  expressly  granted  or 
vested,  have,  in  the  Constitution,  a  sense  equivalent  to  that  of  the 
■words,  laws,  not  absolutely  necessary  indeed,  but  appropriate, 
plainly  adapted  to  constitutional  and  legitimate  ends;  laws  not 
prohibited,  but  consistent  with  the  letter  and  spirit  of  the  Consti- 

1  2  Story  on  the  Constitution,  p.         24  Wheaton,  421. 
142,  §  1253.  3  4  Wheaton,  423. 


,      HEPBURN  V.  GRISWOLD.  127 

tution;    laws  really  calculated  to  effect  objects  intrusted  to  the 
government. 

The  question  before  us,  then,  resolves  itself  into  this:  "Is  the 
clause  which  makes  United  States  notes  a  legal  tender  for  debts 
contracted  prior  to  its  enactment,  a  law  of  the  description  stated  in 
the  rule?" 

It  is  not  doubted  that  the  power  to  establish  a  standard  of  value 
by  which  all  other  values  may  be  measured,  or,  in  other  words,  to 
determine  what  shall  be  lawful  money  and  a  legal  tender,  is  in  its 
nature,  and  of  necessity,  a  governmental  power.  It  is  in  all  coun- 
tries exercised  by  the  government.  In  the  United  States,  so  far 
as  it  relates  to  the  precious  metals,  it  is-  vested  in  Congress  by  the 
grant  of  the  power  to  coin  money.  But  can  a  power  to  impart 
these  qualities  to  notes,  or  promises  to  pay  money,  when  offered 
in  discharge  of  pre-existing  debts,  be  derived  from  the  coinage 
power,  or  from  any  other  power  expressly  given? 

It  is  certainly  not  the  same  power  as  the  power  to  coin  money. 
'Not  is  it  in  any  reasonable  or  satisfactory  sense  an  appropriate 
or  plainly  adapted  means  to  the  exercise  of  that  power.  Nor  is 
there  more  reason  for  saying  that  it  is  implied  in,  or  incidental 
to,  the  power  to  regulate  the  value  of  coined  money  of  the  United 
States,  or  of  foreign  coins.  This  power  of  regulation  is  a  power 
to  determine  the  weight,  purity,  form,  impression,  and  denomina- 
tion of  the  several  coins,,  and  their  relation  to  each  other,  and 
the  relations  of  foreign  coins  to  the  monetary  unit  of  the  United 
States. 

Nor  is  the  power  to  make  notes  a  legal  tender  the  same  as  the 
power  to  issue  notes  to  be  used  as  currency.  The  old  Congress, 
under  the  Articles  of  Confederation,  was  clothed  by  express  grant 
with  the  power  to  emit  bills  of  credit,  which  are  in  fact  notes  for 
circulation  as  currency;  and  yet  that  Congress  was  not  clothed 
with  the  power  to  make  these  bills  a  legal  tender  in  payment.  And 
this  court  has  recentfy  held  that  the  Congress,  under  the  Consti- 
tution, possesses,  as  incidental  to  other  powers,  the  same  power 
as  the  old  Congress  to  emit  bills  or  notes;  but  it  was  expressly 
declared  at  the  same  time  that  this  decision  concluded  nothing 
on  the  question  of  legal  tender.  Indeed,  we  are  not  aware  that 
it  has  ever  been  claimed  that  the  power  to  issue  bills  or  notes  has 
any  identity  with  the  power  to  make  them  a  legal  tender.  On  the 
contrary,  the  whole  history  of  the  country  refutes  that  notion. 
The  States  have  always  been  held  to  possess  the  power  to  author- 
ize and  regulate  the  issue  of  bills  for  circulation  by  banks  or  indi- 
viduals, subject,  as  has  been  lately  determined,  to  the  control  of 


128  CASES   ON  CONSTITUTIONAL   LAW. 

Congress,  for  the  purpose  of  establishing  and  securing  a  National 
currency;  and  yet  the  States  are  expressly  prohibited  by  the  Con- 
stitution from  making  anything  but  gold  and  silver  coin  a  legal 
tender.  This  seems  decisive  on  the  point  that  the  power  to  issue 
notes  and  the  power  to  make  them  a  legal  tender  are  not  the 
same  power,  and  that  they  have  no  necessary  connection  with 
each  other. 

But  it  has  been  maintained  in  argument  that  the  power  to 
make  United  States  notes  a  legal  tender  in  payment  of  all  debts 
is  a  means  appropriate  and  plainly  adapted  to  the  execution  of  the 
power  to  carry  on  war,  of  the  power  to  regulate  commerce,  and 
of  the  power  to  borrow  money.  If  it  is,  and  is  not  prohibited,  nor 
inconsistent  with  the  letter  or  spirit  of  the  Constitution,  then  the 
act  which  makes  them  such  legal  tender  must  be  held  to  be  con- 
stitutional. 

Let  us,  then,  first  inquire  whether  it  is  an  appropriate  and  plain- 
ly adapted  means  for  carrying  on  war?  The  affirmative  argument 
may  be  thus  stated:  Congress  has  power  to  declare  and  provide 
for  carrying  on  war;  Congress  has  also  power  to  emit  bills  of  credit, 
or  circulating  notes  receivable  for  government  dues,  and  payable,  so 
far  at  least  as  parties  are  willing  to  receive  them,  in  discharge  of 
government  obligations;  it  will  facilitate  the  use  of  such  notes 
in  disbursements  to  make  them  a  legal  tender  in  payment  of  exist- 
ing debts;  therefore  Congress  may  make  such  notes  a  legal  tender. 

It  is  difficult  to  say  to  what  express  power  the  authority  to  make 
notes  a  legal  tender  in  payment  of  pre-existing  debts  may  not  be 
upheld  as  incidental,  upon  the  principles  of  this  argument.  Is 
there  any  power  which  does  not  involve  the  use  of  money?  And 
is  there  any  doubt  that  Congress  may  issue  and  use  bills  of  credit 
as  money  in  the  execution  of  any  power?  The  power  to  establish 
post-offices  and  post-roads,  for  example,  involves  the  collection 
and  disbursement  of  a  great  revenue.  Is  not  the  power  to  make 
notes  a  legal  tender  as  clearly  incidental  to  this  power  as  to  the 
war  power? 

The  answer  to  this  question  does  not  appear  to  us  doubtful. 
The  argument,  therefore,  seems  to  prove  too  much.  It  carries  the 
doctrine  of  implied  powers  very  far  beyond  any  extent  hitherto 
given  to  it.  It  asserts  that  whatever  in  any  degree  promotes  an 
end  within  the  scope  of  a  general  power,  whether,  in  the  correct 
sense  of  the  word,  appropriate  or  not,  may  be  done  in  the  exercise 
of  an  implied  power. 

Can  this  proposition  be  maintained? 

It  is  said  that  this  is  not  a  question  for  the  court  deciding  a 


HEPBURN  V.  GRISWOLD.  129 

cause,  but  for  Congress  exercising  the  power.  But  the  decisive 
answer  to  this  is  that  the  admission  of  a  legislative  power  to  de- 
termine finally  what  powers  have  the  described  relation  as  means 
to  the  execution  of  other  powers  plainly  granted,  and,  then,  to 
exercise  absolutely  and  without  liability  to  question,  in  cases  in- 
volving private  rights,  the  powers  thus  determined  to  have  that 
relation,  would  completely  change  the  nature  of  American  gov- 
ernment. It  would  convert  the  government,  which  the  people 
ordained  as  a  government  of  limited  powers,  into  a  government  of 
unlimited  powers.  It  would  confuse  the  boundaries  which  sep- 
arate the  executive  and  judicial  from  the  legislative  authority.  It 
would  obliterate  every  criterion  which  this  court,  speaking  through 
the  venerated  Chief  Justice  in  the  case  already  cited,  established 
for  the  determination  of  the  question  whether  legislative  acts  are 
constitutional  or  unconstitutional. 

Undoubtedly  among  means  appropriate,  plainly  adapted,  really 
calculated,  the  legislature  has  unrestricted  choice.  But  there  can 
be  no  implied  power  to  use  means  not  within  the  description. 

Now,  then,  let  it  be  considered  what  has  actually  been  done  in 
the  provision  of  a  National  currency.  In  July  and  August,  1861, 
and  February,  1863,  the  issue  of  sixty  millions  of  dollars  in 
United  States  notes,  payable  on  demand,  was  authorized.^  They 
were  made  receivable  in  payments,  but  were  not  declared  a  legal 
tender  until  March,  1862,^  when  the  amount  in  circulation  had 
been  greatly  reduced  by  receipt  and  cancellation.  In  1862  and 
1863^  the  issue  of  four  hundred  and  fifty  millions  in  United  States 
notes,  payable,  not  on  demand,  but,  in  effect,  at  the  convenience 
of  the  government,  was  authorized,  subject  to  certain  restrictions 
as  to  fifty  millions.  These  notes  were  made  receivable  for  the 
bonds  of  the  National  loans,  for  all  debts  due  to  or  from  the 
United  States,  except  duties  on  imports  and  interest  on  the  public 
debt,  and  were  also  declared  a  legal  tender.  In  March,  1863,*  the 
issue  of  notes  for  parts  of  a  dollar  was  authorized  to  an  amount 
not  exceeding  fifty  millions  of  dollars.  These  notes  were  not  de- 
clared a  legal  tender,  but  were  made  redeemable  under  regulations 
to  be  prescribed  by  the  Secretary  of  the  Treasury.  In  February, 
1863,°  the  issue  of  three  hundred  millions  of  dollars  in  notes  of 
the  National  banking  associations  was  authorized.  These  notes 
were  made  receivable  to  the  same  extent  as  United  States  notes, 

1 12  Stat,  at  Large,  259,  313  and         3  ib.,  345,  532  and  7C9. 
338.  4  lb.,  711. 

2  lb.,  370.  5  lb.,  669. 


130  CASES   ON  CONSTITUTIONAL   LAW. 

and  provision  was  made  to  secure  their  redemption,  but  they  were 
not  made  a  legal  tender. 

The  several  descriptions  of  notes  have  since  constituted,  under 
the  various  acts  of  Congress,  the  common  currency  of  the  United 
States.  The  notes  which  were  not  declared  a  legal  tender  have 
circulated  with  those  which  were  so  declared  without  unfavorable 
discrimination. 

It  may  be  added  as  a  part  of  the  history  that  other  issues,  bear- 
ing interest  at  various  rates,  were  authorized  and  made  a  legal 
tender,  except  in  redemption  of  bank  notes,  for  face  amount  ex- 
clusive of  interest.  Such  were  the  one  and  two  years  five  per  cent, 
notes  and  three  years  compound  interest  notes."  These  notes 
never  entered  largely  or  permanently  into  the  circulation;  and 
there  is  no  reason  to  think  that  their  utility  was  increased  or  di- 
minished by  the  act  which  declared  them  a  legal  tender  for  face 
amount.  They  need  not  be  further  considered  here.  They  serve 
only  to  illustrate  the  tendency  remarked  by  all  who  have  investi- 
gated the  subject  of  paper  money,  to  increase  the  volume  of  irre- 
deemable issues,  and  to  extend  indefinitely  the  application  of  the 
quality  of  legal  tender.  That  it  was  carried  no  farther  during  the 
recent  civil  war,  and  has  been  carried  no  farther  since,  is  due  to 
circumstances,  the  consideration  of  which  does  not  belong  to  this 
discussion. 

We  recur,  then,  to  the  question  under  consideration.  No  one 
questions  the  general  constitutionality,  and  not  very  many,  perhaps, 
the  general  expediency  of  the  legislation  by  which  a  note  currency 
has  been  authorized  in  recent  years.  The  doubt  is  as  to  the  power 
to  declare  a  particular  class  of  these  notes  to  be  a  legal  tender  in 
payment  of  pre-existing  debts. 

The  only  ground  upon  which  this  power  is  asserted  is,  not  that 
the  issue  of  notes  was  an  appropriate  and  plainly  adapted  means 
for  carrying  on  the  war,  for  that  is  admitted;  but  that  the  making 
of  them  a  legal  tender  to  the  extent  mentioned  was  such  a  means. 

Now,  we  have  seen  that  of  all  the  notes  issued  those  not  de- 
clared a  legal  tender  at  all  constituted  a  very  large  proportion, 
and  that  they  circulated  freely  and  without  discount. 

It  may  be  said  that  their  equality  in  circulation  and  credit  was 
due  to  the  provision  made  by  law  for  the  redemption  of  this  paper 
in  legal  tender  notes.  But  this  provision,  if  at  all  useful  in  this 
respect,  was  of  trifling  importance  compared  with  that  which  made 
them  receivable  for  government  dues.    All  modern  history  testifies 

6  13  Id.,  218,  425. 


HEPBURN  V.  GRISWOLD.  131 

that,  in  time  of  war  especially,  when  taxes  are  augmented,  large 
loans  negotiated,  and  heavy  disbursements  made,  notes  issued  by 
the  authority  of  the  government,  and  made  receivable  for  dues  of 
the  government,  always  obtain  at  first  a  ready  circulation;  and 
even  when  not  redeemable  in  coin,  on  demand,  are  as  little  and 
usually  less  subject  to  depreciation  than  any  other  description  of 
notes,  for  the  redemption  of  which  no  better  provision  is  made. 
And  the  history  of  the  legislation  under  consideration  is,  that  it 
was  upon  this  quality  of  receivability,  and  not  upon  the  quality  of 
legal  tender,  that  reliance  for  circulation  was  originally  placed;  for 
the  receivability  clause  appears  to  have  been  in  the  original  draft 
of  the  bill,  while  the  legal  tender  clause  seems  to  have  been  intro- 
duced at  a  later  stage  of  its  progress. 

These  facts  certainly  are  not  without  weight  as  evidence  that  all 
the  useful  purposes  of  the  notes  would  have  been  fully  answered 
without  making  them  a  legal  tender  for  pre-existing  debts.  It  is 
denied,  indeed,  by  eminent  writers,  that  the  quality  of  legal  tender 
adds  any  thing  at  all  to  the  credit  or  usefulness  of  government 
notes.  They  insist,  on  the  contrary,  that  it  impairs  both.  How- 
ever this  may  be,  it  must  be  remembered  that  it  is  as  a  means  to 
an  end  to  be  attained  by  the  action  of  the  government,  that  the 
implied  power  of  making  notes  a  legal  tender  in  all  payments  is 
claimed  under  the  Constitution.  Now,  how  far  is  the  government 
helped  by  this  means?  Certainly  it  cannot  obtain  new  supplies  or 
services  at  a  cheaper  rate,  for  no  one  will  take  the  notes  for  more 
than  they  are  worth  at  the  time  of  the  new  contract.  The  price  will 
rise  in  the  ratio  of  the  depreciation,  and  this  is  all  that  could  hap- 
pen if  the  notes  were  not  made  a  legal  tender.  But  it  may  be  said 
that  the  depreciation  will  be  less  to  him  who  takes  them  from 
the  government,  if  the  government  will  pledge  to  him  its  power 
to  compel  his  creditors  to  receive  them  at  par  in  payments.  This 
is,  as  we  have  seen,  by  no  means  certain.  If  the  quantity  issued 
be  excessive,  and  redemption  uncertain  and  remote,  great  depre- 
ciation will  take  place;  if,  on  the  other  hand,  the  quantiy  is  only 
adequate  to  the  demands  of  business,  and  confidence  in  early  re- 
demption is  strong,  the  notes  will  circulate  freely  whether  made 
a  legal  tender  or  not. 

But  if  it  be  admitted  that  some  increase  of  availability  is  de- 
rived from  making  the  notes  a  legal  tender  under  new  contracts,  it 
by  no  means  follows  that  any  appreciable  advantage  is  gained  by 
compelling  creditors  to  receive  them  in  satisfaction  of  pre-exist- 
ing debts.  And  there  is  abundant  evidence,  that  whatever  benefit 
is  possible  from  that  compulsion  to  some  individuals  or  to  the 


132  CASES  ON  CONSTITUTIONAL   LAW. 

government,  is  far  more  than  outweighed  by  the  losses  of  property, 
the  derangement  of  business,  the  fluctuations  of  currency  and  val- 
ues, and  the  increase  of  prices  to  the  people  and  the  government, 
and  the  long  train  of  evils  which  flow  from  the  use  of  irredeemable 
paper  money.  It  is  true  that  these  evils  are  not  to  be  attributed 
altogether  to  making  it  a  legal  tender.  But  this  increases  these 
evils.  It  certainly  widens  their  extent  and  protracts  their  con- 
tinuance. 

We  are  unable  to  persuade  ourselves  that  an  expedient  of  this 
sort  is  an  appropriate  and  plainly  adapted  means  for  the  execution 
of  the  power  to  declare  and  carry  on  war.  If  it  ad(fe  nothing  to 
the  utility  of  the  notes,  it  cannot  be  upheld  as  a  means  to  the  end 
in  furtherance  of  which  the  notes  are  issued.  Nor  can  it,  in  our 
judgment,  be  upheld  as  such,  if,  while  facilitating  in  some  degree 
the  circulation  of  the  notes,  it  debases  and  injures  the  currency  in 
its  proper  use  to  a  much  greater  degree.  And  these  considerations 
seem  to  us  equally  applicable  to  the  powers  to  regulate  commerce 
and  to  borrow  money.  Both  powers  necessarily  involve  the  use 
of  money  by  the  people  and  by  the  government,  but  neither,  as 
we  think,  carries  with  it  as  an  appropriate  and  plainly  adapted 
means  to  its  exercise,  the  power  of  making  circulating  notes  a 
legal  tender  in  payment  of  pre-existing  debts. 

But  there  is  another  view,  which  seems  to  us  decisive,  to  what- 
ever express  power  the  supposed  implied  power  in  question  may 
be  referred.  In  the  rule  stated  by  Chief  Justice  Marshall,  the 
words  appropriate,  plainly  adapted,  really  calculated,  are  qualified 
by  the  limitation  that  the  means  must  be  not  prohibited,  but  con- 
sistent with  the  letter  and  spirit  of  the  Constitution.  Nothing  so 
prohibited  or  inconsistent  can  be  regarded  as  appropriate,  or  plainly 
adapted,  or  really  calculated  means  to  any  end. 

Let  us  inquire,  then,  first,  whether  making  bills  of  credit  a  legal 
tender,  to  the  extent  indicated,  is  consistent  with  the  spirit  of  the 
Constitution.  Among  the  great  cardinal  principles  of  that  instru- 
ment, no  one  is  more  conspicuous  or  more  venerable  than  the  estab- 
lishment of  justice.  And  what  was  intended  by  the  establishment 
of  justice  in  the  minds  of  the  people  who  ordained  it  is,  happily, 
not  a  matter  of  disputation.  It  is  not  left  to  inference  or  conjec- 
ture, especially  in  its  relations  to  contracts. 

When  the  Constitution  was  undergoing  discussion  in  the  Con- 
vention, the  Congress  of  the  Confederation  was  engaged  in  the 
consideration  of  the  ordinance  for  the  government  of  the  territory 
northwest  of  the  Ohio, — the  only  territory  subject  at  that  time  to 
its  regulation  and  control.    By  this  ordinance  certain  fundamental 


I 


HEPBURN  V.  GRISWOLD.  133 

articles  of  compact  were  established  between  the  original  States 
and  the  people  and  States  of  the  territory,  for  the  purpose,  to  use 
its  own  language,  "of  extending  the  fundamental  principles  of 
civil  and  religious  liberty,  whereon  these  republics"  (the  States 
united  under  the  Confederation),  "their  laws  and  constitutions  are 
erected."  Among  these  fundamental  principles  was  this:  "And 
in  the  just  preservation  of  rights  and  property  it  is  understood 
and  declared  that  no  law  ought  ever  to  be  made,  or  have  force  in 
the  said  territory,  that  shall  in  any  manner  whatever  interfere 
with  or  affect  private  contracts  or  engagements  bona  fide  and  with- 
out fraud  previously  formed." 

The  same  principle  found  more  condensed  expression  in  that 
most  valuable  provision  of  the  Constitution  of  the  United  States, 
ever  recognized  as  an  efficient  safeguard  against  injustice,  that  "no 
State  shall  pass  any  law  impairing  the  obligation  of  contracts." 

It  is  true  that  this  prohibition  is  not  applied  in  terms  to  the 
government  of  the  United  States.  Congress  has  express  power  to 
enact  bankrupt  laws,  and  we  do  not  say  that  a  law  made  in  the 
execution  of  any  other  express  power,  which,  incidentally  only, 
impairs  the  obligation  of  a  contract,  can  be  held  to  be  unconstitu- 
tional for  that  reason. 

But  we  think  it  clear  that  those  who  framed  and  those  who 
adopted  the  Constitution,  intended  that  the  spirit  of  this  prohi- 
bition should  pervade  the  entire  body  "of" legislation,  and  that  the 
justice  which  the  Constitution  was  ordained,  to  .establish  was  not 
thought  by  them  to  be  coi^patibl^'with  Tegisl^tioh  of  an  opposite 
tendency.  In  other  words,  we  cannot  dotib't  that  a  law  not  made 
in  pursuance  of  an  express  poVv^r^ 'which  "h^eassarily  and  in  its 
direct  operation  impairs  the  obligation' of  c<)i\tracts,  is  inconsistent 
with  the  spirit  of  the  Constitl3tion^'    '    '  * 

Another  provision,  found  iii  the  fifth  amendment,  must  be  con- 
sidered in  this  connection.  We  refer  to  that  which  ordains  that 
private  property  shall  not  be  taken  for  public  use  without  com- 
pensation. This  provision  is  kindred  in  spirit  to  that  which  for- 
bids legislation  impairing  the  obligation  of  contracts;  but,  unlike 
that,  it  is  addressed  directly  and  solely  to  the  National  govern- 
ment. It  does  not,  in  terms,  prohibit  legislation  which  appropri- 
ates the  private  property  of  one  class  of  citizens  to  the  use  of  an- 
other class;  but  if  such  property  cannot  be  taken  for  the  benefit 
of  all,  without  compensation,  it  is  difficult  to  understand  how  it 
can  be  so  taken  for  the  benefit  of  a  part  without  violating  the  spirit 
of  the  prohibition. 

But  there  is  another  provision  in  the  same  amendment,  which. 


134  CASES   ON  CONSTITUTIONAL   LAW. 

in  our  judgment,  cannot  have  its  full  and  intended  effect  unless 
construed  as  a  direct  prohibition  of  the  legislation  which  we  have 
been  considering.  It  is  that  which  declares  that  "no  person  shall 
be  deprived  of  life,  liberty,  or  property,  without  due  process  of  law." 

It  is  not  doubted  that  all  the  provisions  of  this  amendment  op- 
erate directly  in  limitation  and  restraint  of  the  legislative  powers 
conferred  by  the  Constitution.  The  only  question  is,  whether  an 
act  which  compels  all  those  who  hold  contracts  for  the  payment  of 
gold  and  silver  money  to  accept  in  payment  a  currency  of  inferior 
value  deprives  such  persons  of  property  without  due  process  of  law. 

It  is  quite  clear,  that  whatever  may  be  the  operation  of  such  an 
act,  due  process  of  law  makes  no  part  of  it.  Does  it  deprive  any 
person  of  property?  A  very  large  proportion  of  the  property  of 
civilized  men  exists  in  the  form  of  contracts.  These  contracts  al- 
most invariably  stipulate  for  the  payment  of  money.  And  we  have 
already  seen  that  contracts  in  the  United  States,  prior  to  the  act 
under  consideration,  for  the  payment  of  money,  were  contracts  to 
pay  the  sum  specified  in  gold  and  silver  coin.  And  it  is  beyond 
doubt  that  the  holders  of  these  contracts  were  and  are  as  fully 
entitled  to  the  protection  of  this  constitutional  provision  as  the 
holders  of  any  other  description  of  property. 

But  it  may  be  said  that  the  holders  of  no  description  of  property 
are  protected  by  it  from  legislation  which  incidentally  only  im- 
pairs its  value.  And  it  ma^vb?  urged  in  illustration  that  the  hold- 
ers of  stock  in  a  turnpik*?,  a  bridgQ,  or  a  manufacturing  corpora- 
tion, or  an  insurance, coiiipanj,  or  a, -bank,  cannot  invoke  its  pro- 
tection against  legislation,  yvhicn  by, authorizing  similar  works  or 
corporations,  reduae&its  price  in  t^e  markjet.  But  all  this  does  not 
appear  to  meet  the  i^al  difficuliy.  In -the  cases  mentioned  the 
injury  is  purely  contingent  and  .incidental.  In  the  case  we  are 
considering  it  is  direct  and  inevitable. 

If  in  the  cases  mentioned  the  holders  of  the  stock  were  required 
by  law  to  convey  it  on  demand  to  any  one  who  should  think  fit  to 
offer  half  its  value  for  it,  the  analogy  would  be  more  obvious.  No 
one  probably  could  be  found  to  contend  that  an  act  enforcing  the 
acceptance  of  fifty  or  seventy-five  acres  of  land  in  satisfaction  of 
a  contract  to  convey  a  hundred  would  not  come  within  the  prohi- 
bition against  arbitrary  privation  of  property. 

We  confess  ourselves  unable  to  perceive  any  solid  distinction  be- 
tween such  an  act  and  an  act  compelling  all  citizens  to  accept,  in 
satisfaction  of  all  contracts  for  money,  half  or  three-quarters  or 
any  other  proportion  less  than  the  whole  of  the  value  actually  due, 
according  to  their  terms.    It  is  difficult  to  conceive  what  act  would 


HEPBURN  V.  GRISWOLD.  135 

take  2)rivate  property  without  process  of  law  if  such  an  act  would 
not. 

We  are  obliged  to  conclude  that  an  act  making  mere  promises 
to  pay  dollars  a  legal  tender  in  payment  of  debts  previously  con- 
tracted, is  not  a  means  appropriate,  plainly  adapted,  really  cal- 
culated to  carry  into  effect  any  express  power  vested  in  Congress; 
that  such  an  act  is  inconsistent  with  the  spirit  of  the  Constitution; 
and  that  it  is  prohibited  by  the  Constitution. 

It  is  not  surprising  that  amid  the  tumult  of  the  late  civil  war, 
and  under  the  influence  of  apprehensions  for  the  safety  of  the  Re- 
public almost  universal,  different  views,  never  before  entertained 
by  American  statesmen  or  Jurists,  were  adopted  by  many.  The 
time  was  not  favorable  to  considerate  reflection  upon  the  constitu- 
tional limits  of  legislative  or  executive  authority.  If  power  was 
assumed  from  patriotic  motives,  the  assumption  found  ready  justi- 
fication in  patriotic  hearts.  Many  who  doubted  yielded  their 
doubts;  many  who  did  not  doubt  were  silent.  Some  who  were 
strongly  averse  to  making  government  notes  a  legal  tender  felt 
themselves  constrained  to  acquiesce  in  the  views  of  the  advocates 
cf  the  measure.  Kot  a  few  who  then  insisted  upon  its  necessity,  or 
acquiesced  in  that  view,  have,  since  the  return  of  peace,  and  under 
the  influence  of  the  calmer  time,  reconsidered  their  conclusions, 
and  now  concur  in  those  which  we  have  just  announced.  These 
conclusions  seem  to  us  to  be  fully  sanctioned  by  the  letter  and 
spirit  of  the  Constitution. 

We  are  obliged,  therefore,  to  hold  that  the  defendant  in  error 
was  not  bound  to  receive  from  the  plaintiffs  the  currency  ten- 
dered to  him  in  payment  of  their  note,  made  before  the  passage 
of  the  act  of  February  25,  1863.  It  follows  that  the  judgment  of 
the  Court  of  Appeals  of  Kentucky  must  be  affirmed. 

It  is  proper  to  say  that  Mr.  Justice  Grier,  who  was  a  member  of 
the  court  when  this  cause  was  decided  in  conference,^  and  when 
this  opinion  was  directed  to  be  read,^  stated  his  judgment  to  be 
that  the  legal  tender  clause,  properly  construed,  has  no  applica- 
tion to  debts  contracted  prior  to  its  enactment;  but  that  upon 
the  construction  given  to  the  act  by  the  other  judges  he  con- 
curred in  the  opinion  that  the  clause,  so  far  as  it  makes  United 
States  notes  a  legal  tender  for  such  debts,  is  not  warranted  by  the 
Constitution.  Judgment  affirmed. 

[Mr.  Justice  Miller  delivered  a  dissenting  opinion,  in  which 
Justices  Swayne  and  Davis  concurred.] 

1  November  27,  1869.  2  January  29,  1870. 


136  CASES   ON   CONSTITUTIONAL   LAW. 

LEGAL   TENDER   CASES. 

KNOX    V.    LEE.      PARKER   v.    DAVIS. 

12  Wallace,  457.     Decided  1871. 

These  were  two  suits;  the  first  a  writ  of  error  to  the  Circuit 
Court  for  the  "Western  District  of  Texas,  the  second  an  appeal 
from  a  decree  in  equity  in  the  Supreme  Judicial  Court  of  Massa- 
chusetts.    .     .     . 

Mr.  Justice  Stroxg  delivered  the  opinion  of  the  court. 

The  controlling  questions  in  these  cases  are  the  following:  Are 
the  acts  of  Congress,  known  a^  the  legal  tender  acts,  constitutional 
when  applied  to  contracts  made  before  their  passage;  and,  sec- 
ondly, are  they  valid  as  applicable  to  debts  contracted  since  their 
enactment?  These  questions  have  been  elaborately  argued,  and 
they  have  received  from  the  court  that  consideration  which  their 
great  importance  demands.  It  would  be  difficult  to  overestimate 
the  consequences  which  must  follow  our  decision.  They  will  affect 
the  entire  business  of  the  country,  and  take  hold  of  the  possible 
continued  existence  of  the  government.  If  it  be  held  by  this  court 
that  Congress  has  no  constitutional  power,  under  any  circum- 
stances, or  in  any  emergency,  to  make  treasury  notes  a  legal  tender 
for  the  payment  of  all  debts  (a  power  confessedly  possessed  by 
every  independent  sovereignty  other  than  the  United  States),  the 
government  is  without  those  means  of  self-preservation  which,  all 
must  admit,  may,  in  certain  contingencies,  become  indispensable, 
even  if  they  were  not  when  the  acts  of  Congress  now  called  in 
question  were  enacted.  It  is  also  clear  that  if  we  hold  the  acts 
invalid  as  applicable  to  debts  incurred,  or  transactions  which  have 
taken  place  since  their  enactment,  our  decision  must  cause, 
throughout  the  country,  great  business  derangement,  widespread 
distress,  and  the  rankest  injustice.  The  debts  which  have  been 
contracted  since  February  25th,  1862,  constitute,  doubtless,  by 
far  the  greatest  portion  of  the  existing  indebtedness  of  the  coun- 
try. They  have  been  contracted  in  view  of  the  acts  of  Congress 
declaring  treasury  notes  a  legal  tender,  and  in  reliance  upon  that 
declaration.  Men  have  bought  and  sold,  borrowed  and  lent,  and 
assumed  every  variety  of  obligations  contemplating  that  payment 
might  be  made  with  such  notes.  Indeed,  legal  tender  treasury 
notes  have  become  the  universal  measures  of  value.  If  now,  by 
our  decision,  it  be  established  that  these  debts  and  obligations  can 


LEGAL   TENDER    CASES.  137 

be  discharged  only  by  gold  coin;  if,  contrary  to  the  expectation 
of  all  parties  to  these  contracts,  legal  tender  notes  are  rendered 
unavailable,  the  government  has  become  an  instrument  of  the 
grossest  injustice;  all  debtors  are  loaded  with  an  obligation  it  was 
never  contemplated  they  should  assume;  a  large  percentage  is 
added  to  every  debt,  and  such  must  become  the  demand  for  gold 
to  satisfy  contracts,  that  ruinous  sacrifices,  general  distress,  and 
bankruptcy  may  be  expected.  These  consequences  are  too  obvious 
to  admit  of  question.  And  there  is  no  well-founded  distinction 
to  be  made  between  the  constitutional  validity  of  an  act  of  Con- 
gress declaring  treasury  notes  a  legal  tender  for  the  payment  of 
debts  contracted  after  its  passage  and  that  of  an  act  making  them 
a  legal  tender  for  the  discharge  of  all  debts,  as  well  those  incurred 
before  as  those  made  after  its  enactment.  There  may  be  a  differ- 
ence in  the  effects  produced  by  the  acts,  and  in  the  hardship  of 
their  operation,  but  in  both  cases  the  fundamental  question,  that 
which  tests  the  validity  of  the  legislation,  is,  can  Congress  consti- 
tutionally give  to  treasury  notes  the  character  and  qualities  of 
money?  Can  such  notes  be  constituted  a  legitimate  circulating 
medium,  having  a  defined  legal  value?  If  they  can,  then  such 
notes  must  be  available  to  fulfill  all  contracts  (not  expressly  ex- 
cepted) solvable  in  money,  without  reference  to  the  time  when  the 
contracts  were  made.  Hence  it  is  not  strange  that  those  who  hold 
the  legal  tender  acts  unconstitutional  when  applied  to  contracts 
made  before  February,  1862,  find  themselves  compelled  also  to 
hold  that  the  acts  are  invalid  as  to  debts  created  after  that  time, 
and  to  hold  that  both  classes  of  debts  alike  can  be  discharged  only 
by  gold  and  silver  coin. 

The  consequences  of  which  we  have  spoken,  serious  as  they  are, 
must  be  accepted,  if  there  is  a  clear  incompatibility  between  the 
Constitution  and  the  legal  tender  acts.  But  we  are  unwilling  to 
precipitate  them  upon  the  country  unless  such  an  incompatibility 
plainly  appears.  A  decent  respect  for  a  co-ordinate  branch  of  the 
government  demands  that  the  judiciary  should  presume,  until  the 
contrary  is  cl^^arly  shown,  that  there  has  been  no  transgression  of 
power  by  Congress — all  the  members  of  which  act  under  the  obli- 
gation of  an  oath  of  fidelity  to  theX^onstitution.  Such  has  always 
been  the  rule.  In  Commonwealth  v.  Smith,^  the  language  of  the 
court  was:  "It  must  be  remembered  that,  for  weighty  reasons,  it 
has  been  assumed  as  a  principle,  in  construing  constitutions,  by 
the  Supreme  Court  of  the  United  States,  by  this  court,  and  by 

1  4  Binney,  123. 


138  CASES   ON  CONSTITUTIONAL   LAW. 

every  other  court  of  reputation  in  the  United  States,  that  an  act 
of  the  legislature  is  not  to  be  declared  void  unless  the  violation  of 
the  Constitution  is  so  manifest  as  to  leave  no  room  for  reasonable 
doubt;"  and,  in  Fletcher  v.  Peck,^  Chief  Justice  Marshall  said, 
"It  is  not  on  slight  implication  and  vague  conjecture  that  the 
legislature  is  to  be  pronounced  to  have  transcended  its  powers  and 
its  acts  to  be  considered  void.  The  opposition  between  the  Con- 
stitution and  the  law  should  be  such  that  the  judge  feels  a  clear 
and  strong  conviction  of  their  incompatibility  with  each  other." 
It  is  incumbent,  therefore,  upon  those  who  affirm  the  unconstitu- 
tionality of  an  act  of  Congress  to  show  clearly  that  it  is  in  viola- 
tion of  the  provisions  of  the  Constitution.  It  is  not  sufficient  for 
them  that  they  succeed  in  raising  a  doubt. 

Nor  can  it  be  questioned  that,  when  investigating  the  nature 
and  extent  of  the  powers  conferred  by  the  Constitution  upon  Con- 
gress, it  is  indispensable  to  keep  in  view  the  objects  for  which 
those  powers  were  granted.  This  is  a  universal  rule  of  construc- 
tion applied  alike  to  stastutes,  wills,  contracts,  and  constitutions. 
If  the  general  purpose  of  the  instrument  is  ascertained,  the  lan- 
guage of  its  provisions  must  be  construed  with  reference  to  that 
purpose,  and  so  as  to  subserve  it.  In  no  oither  way  can  the  intent 
of  the  framers  of  the  instrument  be  discovered.  And  there  are 
more  urgent  reasons  for  looking  to  the  ultimate  purpose  in  exam- 
ining the  powers  conferred  by  a  constitution  than  there  are  in 
construing  a  statute,  a  will,  or  a  contract.  We  do  not  expect  to 
find  in  a  constitution  minute  details.  It  is  necessarily  brief  and 
comprehensive.  It  prescribes  outlines,  leaving  the  filling  up  to  be 
deduced  from  the  outlines.  In  Martin  v.  Hunter,^  it  was  said, 
"The  Constitution  unavoidably  deals  in  general  language.  It  did 
not  suit  the  purpose  of  the  people  in  framing  this  great  charter  of 
our  liberties  to  provide  for  minute  specifications  of  its  powers,  or 
to  declare  the  means  by  which  those  powers  should  be  carried  into 
execution."  And  with  singular  clearness  it  was  said  by  Chief  Jus- 
tice Marshall,  in  McCulloch  v.  The  State  of  Maryland,*  "A  con- 
stitution, to  contain  an  accurate  detail  of  all  subdivisions  of  which 
its  great  powers  will  admit,  and  of  all  the  means  by  which  it 
may  be  carried  into  execution,  would  partake  of  the  prolixity 
of  a  political  code,  and  would  scarcely  be  embraced  by  the  human 
mind.  It  would  probably  never  be  understood  by  the  public.  Its 
nature,  therefore,  requires  that  only  its  great  outlines  should  be 

2  6  Cranch,  87.  4  4  Id.,  405. 

3  1  Wheaton,  326. 


LEGAL   TENDER    CASES.  139 

marked,  its  important  objects  designated,  and  the  minor  ingre- 
dients which  compose  those  objects  be  deduced  from  the  nature  of 
the  objects  themselves."  If  these  are  correct  principles,  if  they 
are  proper  views  of  the  manner  in  which  the  Constitution  is  to  be 
understood,  the  powers  conferred  upon  Congress  must  be  regarded 
as  related  to  each  other,  and  all  means  for  a  common  end.  Each 
is  but  a  part  of  a  system,  a  constituent  of  one  whole.  No  single 
power  is  the  ultimate  end  for  which  the  Constitution  was  adopted. 
It  may,  in  a  very  proper  sense,  be  treated  as  a  means  for  the  ac- 
complishment of  a  subordinate  object,  but  that  object  is  itself  a 
means  designed  for  an  ulterior  purpose.  Thus  the  power  to  levy 
and  collect  taxes,  to  coin  money  and  regulate  its  value,  to  raise 
and  support  armies,  or  to  provide  for  and  maintain  a  navy,  are 
instruments  for  the  paramount  object,  which  was  to  establish  a 
government,  sovereign  within  its  sphere,  with  capability  of  self- 
preservation,  thereby  forming  a  union  more  perfect  than  that 
which  existed  under  the  old  Confederacy. 

The  same  may  be  asserted  also  of  all  the  non-enumerated 
powers  included  in  the  authority  expressly  given  "to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion the  specified  powers  vested  in  Congress,  and  all  other  powers 
vested  by  the  Constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof."  It  is  impossible  to  know 
what  those  non-enumerated  powers  are,  and  what  is  their  nature 
and  extent,  without  considering  the  purposes  they  were  intended  to 
subserve.  Those  purposes,  it  must  be  noted,  reach  beyond  the 
mere  execution  of  all  powers  definitely  intrusted  to  Congress  and 
mentioned  in  detail.  They  embrace  the  execution  of  all  other 
powers  vested  by  the  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof.  It  certainly  was 
intended  to  confer  upon  the  government  the  power  of  self-preser- 
vation. Said  Chief  Justice  Marshall,  in  Cohens  v.  The  Bank  of 
Virginia,''  "America  has  chosen  to  be,  in  many  respects  and  to 
many  purposes,  a  nation,  and  for  all  these  purposes  her  govern- 
ment is  complete;  for  all  these  objects  it  is  supreme.  It  can  then, 
in  effecting  these  objects,  legitimately  control  all  individuals  or 
governments  within  the  American  territory."  He  added,  in  the 
same  case,  "A  constitution  is  framed  for  ages  to  come,  and  is  de- 
signed to  approach  immortality  as  near  as  mortality  can  approach 
it.  Its  course  cannot  always  be  tranquil.  It  is  exposed  to  storms 
and  tempests,  and  its  framers  must  be  unwise  statesmen  indeed,  if 

5  6  Wheaton,  414. 


140  CASES   ON  CONSTITUTIONAL   LAW. 

they  have  not  provided  it,  as  far  as  its  nature  will  permit,  with 
the  means  of  self-preservation  from  the  perils  it  is  sure  to  en- 
counter." That  would  appear,  then,  to  be  a  most  unreasonable 
construction  of  the  Constitution  which  denies  to  the  government 
created  by  it,  the  right  to  employ  freely  every  means,  not  pro- 
hibited, necessary  for  its  preservation,  and  for  the  fulfilment  of 
its  acknowledged  duties.  Such  a  right,  we  hold,  was  given  by  the 
last  clause  of  the  eighth  section  of  its  first  article.  The  means 
or  instrumentalities  referred  to  in  that  clause,  and  authorized,  are 
not  enumerated  or  defined.  In  the  nature  of  things  enumeration 
and  specification  were  impossible.  But  they  were  left  to  the  dis- 
cretion of  Congress,  subject  only  to  the  restrictions  that  they  be 
not  prohibited,  and  be  necessary  and  proper  for  carrying  into  exe- 
tion  the  enumerated  powers  given  to  Congress,  and  all  other 
powers  vested  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

And  here  it  is  to  be  observed  it  is  not  indispensable  to  the 
existence  of  any  power  claimed  for  the  Federal  government  that 
it  can  be  found  specified  in  the  words  of  the  Constitution,  or 
clearly  and  directly  traceable  to  some  one  of  the  specified  powers. 
Its  existence  may  be  deduced  fairly  from  more  than  one  of  the  sub- 
stantive powers  expressly  defined,  or  from  them  all  combined.  It 
is  allowable  to  group  together  any  number  of  them  and  infer  from 
them  all  that  the  power  claimed  has  been  conferred.  Such  a 
treatment  of  the  Constitution  is  recognized  by  its  own  provisions. 
This  is  well  illustrated  in  its  language  respecting  the  writ  of 
habeas  corpus.  The  power  to  suspend  the  privilege  of  that  writ 
is  not  expressly  given,  nor  can  it  be  deduced  from  any  one  of  the 
particularized  grants  of  power.  Yet  it  is  provided  that  the  privi- 
leges of  the  writ  shall  not  be  suspended  except  in  certain  defined 
contingencies.  This  is  no  express  grant  of  power.  It  is  a  restric- 
tion. But  it  shows  irresistibly  that  somewhere  in  the  Constitution 
power  to  suspend  the  privilege  of  the  writ  was  granted,  either  by 
some  one  or  more  of  the  specifications  of  power,  or  by  them  all 
combined.  And,  that  important  powers  were  understood  by  the 
people  who  adopted  the  Constitution  to  have  been  created  by  it, 
powers  not  enumerated,  and  not  included  incidentally  in  any  one 
of  those  enumerated,  is  shown  by  the  amendments.  The  first  ten 
of  these  were  suggested  in  the  conventions  of  the  States,  and  pro- 
posed at  the  first  session  of  the  first  Congress,  before  any  com- 
plaint was  made  of  a  disposition  to  assume  doubtful  powers.  The 
preamble  to  the  resolution  submitting  them  for  adoption  recited 
that  the  "conventions  of  a  number  of  the  States  had,  at  the  time 


LEGAL   TENDER    CASES.  141 

of  their  adopting  the  Constitution,  expressed  a  desire,  in  order  to 
prevent  misconstruction  or  abuse  of  its  powers,  that  further  de- 
claratory and  restrictive  clauses  should  be  added."  This  was  the 
origin  of  the  amendments,  and  they  are  significant.  They  tend 
plainly  to  r^how  that,  in  the  judgment  of  those  who  adopted  the 
Constitution,  there  were  powers  created  by  it,  neither  expressly 
specified  nor  reducible  from  any  one  specified  power,  or  ancillary 
to  it  alone,  but  which  grew  out  of  the  aggregate  of  powers  con- 
ferred upon  the  government,  or  out  of  the  sovereignty  instituted. 
Most  of  these  amendments  are  denials  of  power  which  had  not 
been  expressly  granted,  and  which  cannot  be  said  to  have  been 
necessary  and  proper  for  carrying  into  execution  any  other  powers. 
Such,  for  example,  is  the  prohibition  of  any  laws  respecting  the 
establishment  of  religion,  prohibiting  the  free  exercise  thereof,  or 
abridging  the  freedom  of  speech  or  of  the  press. 

And  it  is  of  importance  to  observe  that  Congress  has  often  ex- 
ercised, without  question,  powers  that  are  not  expressly  given  nor 
ancillary  to  any  single  enumerated  power.  Powers  thus  exercised 
are  what  are  called  by  Judge  Story,  in  his  Commentaries  on  the 
Constitution,  resulting  powers,  arising  from  the  aggregate  powers 
of  the  government.  He  instances  the  right  to  sue  and  make  con- 
tracts. Many  others  might  be  given.  The  oath  required  by  law 
from  officers  of  the  government  is  one.  So  is  building  a  capitol 
or  a  presidential  mansion,  and  so  also  is  the  penal  code.  This  last 
is  worthy  of  brief  notice.  Congress  is  expressly  authorized  "to 
provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States,  and  to  define  and  pvinish  pira- 
cies and  felonies  committed  on  the  high  seas  and  offences  against 
the  laws  of  nations."  It  is  also  empowered  to  declare  the  pun- 
ishment of  treason,  and  provision  is  made  for  impeachments. 
This  is  the  extent  of  power  to  punish  crime  expressly  conferred. 
It  might  be  argued  that  the  expression  of  these  limited  powers 
implies  an  exclusion  of  all  other  subjects  of  criminal  legislation. 
Such  is  the  argument  in  the  present  cases.  It  is  said  because 
Congress  is  authorized  to  coin  money  and  regulate  its  value,  it 
cannot  declare  anything  other  than  gold  and  silver  to  be  money, 
or  make  it  a  legal  tender.  Yet  Congress,  by  the  act  of  April  30, 
1790,  entitled  "An  act  more  effectually  to  provide  for  the  punish- 
ment of  certain  crimes  against  the  United  States,"  and  the  sup- 
plementary act  of  March  3,  1825,  defined  and  provided  for  the 
punishment  of  a  large  class  of  crimes  other  than  those  mentioned 
in  the  Constitution,  and  some  of  the  punishments  prescribed  are 
manifestly  not  in  aid  of  any  single  substantive  power.     No  one 


142  CASES   ON  CONSTITUTIONAL   LAW. 

doubts  that  this  was  rightfully  done,  and  the  power  thus  exercised 
has  been  affirmed  by  this  court  in  United  States  v.  Marigold.'* 
This  case  shows  that  a  power  may  exist  as  an  aid  to  the  execution 
of  an  express  power,  or  an  aggregate  of  such  powers,  though  there 
is  another  express  power  given  relating  in  part  to  the  same  subject 
but  less  extensive.  Another  illustration  of  this  may  be  found  in 
connection  with  the  provisions  respecting  a  census.  The  Consti- 
tution orders  an  enumeration  of  free  persons  in  the  different 
States  every  ten  years.  The  direction  extends  no  further.  Yet 
Congress  has  repeatedly  directed  an  enumeration  not  only  of  free 
persons  in  the  States,  but  of  free  persons  in  the  Territories,  and 
not  only  an  enumeration  of  persons  but  the  collection  of  statistics 
respecting  age,  sex,  and  production.  Who  questions  the  power  to 
do  this? 

Indeed,  the  whole  history  of  the  government  and  of  congres- 
sional legislation  has  exhibited  the  use  of  a  very  wide  discretion, 
even  in  times  of  peace  and  in  the  absence  of  any  trying  emergency, 
in  the  selection  of  the  necessary  and  proper  means  to  carry  into 
effect  the  great  objects  for  which  the  government  was  framed, 
and  this  discretion  has  generally  been  unquestioned,  or,  if  ques- 
tioned, sanctioned  by  this  court.  This  is  true  not  only  when  an 
attempt  has  been  made  to  execute  a  single  power  specifically  given, 
but  equally  true  when  the  means  adopted  have  been  appropriate 
to  the  execution,  not  of  a  single  authority,  but  of  all  the  powers 
created  by  the  Constitution.  Under  the  power  to  establish  post- 
offices  and  post-roads  Congress  has  provided  for  carrying  the  mails, 
punishing  theft  of  letters  and  mail  robberies,  and  even  for  trans- 
porting the  mails  to  foreign  countries.  Under  the  power  to  regu- 
late commerce,  provision  has  been  made  by  law  for  the  improve- 
ment of  harbors,  the  establishment  of  observatories,  the  erection 
of  lighthouses,  break-waters,  and  buoys,  the  registry,  enrollment, 
and  construction  of  ships,  and  a  code  has  been  enacted  for  the 
government  of  seamen.  Under  the  same  power  and  other  powers 
over  the  revenue  and  the  currency  of  the  country,  for  the  con- 
venience of  the  treasury  and  internal  commerce,  a  corporation 
known  as  the  United  States  Bank  was  early  created.  To  its  capital 
the  government  subscribed  one-fifth  of  its  stock.  But  the  corpora- 
tion was  a  private  one,  doing  business  for  its  own  profit.  Its  in- 
corporation was  a  constitutional  exercise  of  congressional  power 
for  no  other  reason  than  that  it  was  deemed  to  be  a  convenient 
instrument  or  means  for  accomplishing  one  or  more  of  the  ends 

«9  Howard,  560. 


LEGAL   TENDER    CASES.  143 

for  which  the  government  was  established,  or,  in  the  language  of 
the  first  article,  already  quoted,  "necessary  and  proper"  for  carry- 
ing into  execution  some  or  all  the  powers  vested  in  the  govern- 
ment. Clearly  this  necessity,  if  any  existed,  was  not  a  direct  and 
obvious  one.  Yet  this  court,  in  McCulloch  v.  Maryland,^  unan- 
imously ruled  that  in  authorizing  the  bank.  Congress  had  not 
transcended  its  powers.  So  debts  due  to  the  United  States  have 
been  declared  by  acts  of  Congress  entitled  to  priority  of  payment 
over  debts  due  to  other  creditors,  and  this  court  has  held  such  acts 
warranted  by  the  Constitution.^ 

This  is  enough  to  show  how,  from  the  earliest  period  of  our  ex- 
istence as  a  nation,  the  powers  conferred  by  the  Constitution  have 
been  construed  by  Congress  and  by  this  court  whenever  such  action 
by  Congress  has  been  called  in  question.  Happily  the  true  mean- 
ing of  the  clause  authorizing  the  enactment  of  all  laws  necessary 
and  proper  for  carrying  into  execution  the  express  powers  con- 
ferred upon  Congress,  and  all  other  powers  vested  in  the  govern- 
ment of  the  United  States,  or  in  any  of  its  departments  or  officers, 
has  long  since  been  settled.  In  Fisher  v.  Blight,^  this  court,  speak- 
ing by  Chief  Justice  Marshall,  said  that  in  construing  it  "it  would 
be  incorrect  and  would  produce  endless  difficulties  if  the  opinion 
should  be  maintained  that  no  law  was  authorized  which  was  not 
indispensably  necessary  to  give  effect  to  a  specified  power.  Where 
various  systems  might  be  adopted  for  that  purpose  it  might  be 
said  with  respect  to  each  that  it  was  not  necessary  because  the  end 
might  be  obtained  by  other  means."  "Congress,"  said  this  court, 
"must  possess  the  choice  of  means,  and  must  be  empowered  to  use 
any  means  which  are  in  fact  conducive  to  the  exercise  of  a  power 
granted  by  the  Constitution.  The  government  is  to  pay  the  debt 
of  the  Union,  and  must  be  authorized  to  use  the  means  which 
appear  to  itself  most  eligible  to  effect  that  object.  It  has,  conse- 
quently, a  right  to  make  remittances  by  bills  or  otherwise,  and  to 
take  those  precautions  which  will  render  the  transaction  safe."  It 
was  in  this  case,  as  we  have  already  remarked,  that  a  law  giving 
priority  to  debts  due  to  the  United  States  was  ruled  to  be  consti- 
tutional for  the  reason  that  it  appeared  to  Congress  to  be  an  eligi- 
ble means  to  enable  the  government  to  pay  the  debts  of  the  Union 

It  was,  however,  in  McCulloch  v.  Maryland  that  the  fullest 
consideration  was  given  to  this  clause  of  the  Constitution  granting 
auxiliary  powers,  and  a  construction  adopted  that  has  ever  since 

7  4  Wheaton,  416.  o  2  Cranch,  358. 

8  Fisher  v.  Blight,  2  Cranch,  358. 


144  CASES   ON  CONSTITUTIONAL   LAW. 

been  accepted  as  determining  its  true  meaning.  .  .  .  [Here 
follows  a  consideration  of  McCulloch  v.  Maryland.]  It  is  hardly 
necessary  to  say  that  these  principles  are  received  with  universal 
assent.  Even  in  Hepburn  v.  Griswold/"  both  the  majority  and 
minority  of  the  court  concurred  in  accepting  the  doctrines  of  Mc- 
Culloch V.  Maryland  as  sound  expositions  of  the  Constitution, 
though  disagreeing  in  their  application. 

With  these  rules  of  constitutional  construction  before  us,  settled 
at  an  early  period  in  the  history  of  the  government,  hitherto  uni- 
versally accepted,  and  not  even  now  doubted,  we  have  a  safe  guide 
to  a  right  decision  of  the  questions  before  us.  Before  we  can  hold 
the  legal  tender  acts  unconstitutional,  we  must  be  convinced  they 
were  not  appropriate  means,  or  means  conducive  to  the  execution 
of  any  or  all  of  the  powers  of  Congress,  or  of  the  government,  not 
appropriate  in  any  plain  degree  (for  we  are  not  judges  of  the  de- 
gree of  appropriateness),  or  we  must  hold  that  they  were  prohib- 
ited. This  brings  us  to  the  inquiry  whether  they  were,  when  en- 
acted, appropriate  instrumentalities  for  carrying  into  effect,  or 
executing  any  of  the  known  powers  of  Congress,  or  of  any  depart- 
ment of  the  government.  Plainly  to  this  inquiry,  a  consideration 
of  the  time  when  they  were  enacted,  and  of  the  circumstances  in 
which  the  government  then  stood,  is  important.  It  is  not  to  be 
denied  that  acts  may  be  adapted  to  the  exercise  of  lawful  power, 
and  appropriate  to  it,  in  seasons  of  exigency,  which  would  be  inap- 
propriate at  other  times. 

We  do  not  propose  to  dilate  at  length  upon  the  circumstances 
in  which  the  country  was  placed,  when  Congress  attempted  to 
make  treasury  notes  a  legal  tender.  They  are  of  too  recent  oc- 
currence to  justify  enlarged  description.  Suffice  it  to  say  that  a 
civil  war  was  then  raging  which  seriously  threatened  the  over- 
throw of  the  government  and  the  destruction  of  the  Constitution 
itself.  It  demanded  the  equipment  and  support  of  large  armies 
and  navies,  and  the  employment  of  money  to  an  extent  beyond 
the  capacity  of  all  ordinary  sources  of  supply.  Meanwhile  the 
public  treasury  was  nearly  empty,  and  the  credit  of  the  govern- 
ment, if  not  stretched  to  its  utmost  tension,  had  become  nearly 
exhausted.  Moneyed  institutions  had  advanced  largely  of  their 
means,  and  more  could  not  be  expected  of  them.  They  had  been 
compelled  to  suspend  specie  payments.  Taxation  was  inadequate 
to  pay  even  the  interest  on  the  debt  already  incurred,  and  it  was 
impossible  to  await  the  income  of  additional  taxes.    The  necessity 

10  8  Wallace,  603. 


LEGAL   TENDER    CASES.  145 

was  immediate  and  pressing.  The  army  was  unpaid.  There  was 
then  due  to  the  soldiers  in  the  field  nearly  a  score  of  millions  of 
dollars.  The  requisitions  from  the  AVar  and  Navy  Departments 
for  supplies  exceeded  fifty  millions,  and  the  current  expenditure 
was  over  one  million  per  day.  The  entire  amount  of  coin  in  the 
country,  including  that  in  private  hands,  as  well  as  that  in  bank- 
ing institutions,  was  insufficient  to  supply  the  need  of  the  gov- 
ernment three  months,  had  it  all  been  poured  into  the  treasury. 
Foreign  credit  we  had  none.  We  say  nothing  of  the  overhanging 
paralysis  of  trade,  and  of  business  generally,  which  threatened  loss 
of  confidence  in  the  ability  of  the  government  to  maintain  its  con- 
tinued existence,  and  therewith  the  complete  destruction  of  all  re- 
maining national  credit. 

It  was  at  such  a  time  and  in  such  circumstances  that  Congress 
was  called  upon  to  devise  means  for  maintaining  the  army  and 
navy,  for  securing  the  large  supplies  of  money  needed,  and,  indeed, 
for  the  preservation  of  the  government  created  by  the  Constitu- 
tion. It  was  at  such  a  time  and  in  such  an  emergency  that  the 
legal  tender  acts  were  passed.  Now,  if  it  were  certain  that  noth- 
ing else  would  have  supplied  the  absolute  necessities  of  the  treas- 
ury, that  nothing  else  would  have  enabled  the  government  to 
maintain  its  armies  and  navy,  that  nothing  else  would  have  saved 
the  government  and  the  Constitution  from  destruction,  while  the 
legal  tender  acts  would,  could  any  one  be  bold  enough  to  assert 
that  Congress  transgressed  its  powers?  Or  if  these  enactments 
did  work  these  results,  can  it  be  maintained  now  that  they  were 
not  for  a  legitimate  end,  or  "appropriate  and  adapted  to  that  end," 
in  the  language  of  Chief  Justice  Marshall?  That  they  did  work 
such  results  is  not  to  be  doubted.  Something  revived  the  droop- 
ing faith  of  the  people;  something  brought  immediately  to  the 
government's  aid  the  resources  of  the  nation,  and  something  en- 
abled the  successful  prosecution  of  the  war,  and  the  preservation 
of  the  national  life.  What  was  it,  if  not  the  legal  tender  enact- 
ments? 

But  if  it  be  conceded  that  some  other  means  might  have  been 
chosen  for  the  accomplishment  of  these  legitimate  and  necessary 
ends,  the  concession  does  not  weaken  the  argument.  It  is  urged 
now,  after  the  lapse  of  nine  years,  and  when  the  emergency  has 
passed,  that  treasury  notes  without  the  legal  tender  clause  might 
have  been  issued  and  that  the  necessities  of  the  government  might 
thus  have  been  supplied.  Hence  it  is  inferred  there  was  no  necessity 
for  giving  to  the  notes  issued  the  capability  of  paying  private 
debts.  At  best  this  is  mere  conjecture.  But  admitting  it  to  be 
10 


146  CASES   ON  CONSTITUTIONAL   LAW. 

true,  what  does  it  prove?  Nothing  more  than  that  Congress  had 
the  choice  of  means  for  a  legitimate  end,  each  appropriate,  and 
adapted  to  that  end,  though,  perhaps,  in  different  degrees.  What 
then?  Can  this  court  say  that  it  ought  to  have  adopted  one  rather 
than  the  other?  Is  it  our  province  to  decide  that  the  means  se- 
lected were  beyond  the  constitutional  power  of  Congress,  because 
we  may  think  that  other  means  to  the  same  ends  would  have  been 
more  appropriate  and  equally  efficient?  That  would  be  to  assume 
legislative  power,  and  to  disregard  the  accepted  rules  for  constru- 
ing the  Constitution.  The  degree  of  the  necessity  for  any  con- 
gressional enactment,  or  the  relative  degree  of  its  appropriate- 
ness, if  it  have  any  appropriateness,  is  for  consideration  in  Con- 
gress, not  here.  Said  Chief  Justice  Marshall,  inMcCulloch  v. 
Maryland,  as  already  stated,  ""When  the  law  is  not  prohibited,  and 
is  really  calculated  to  effect  any  of  the  objects  intrusted  to  the 
government,  to  undertake  here  to  inquire  into  the  degree  of  its 
necessity,  would  be  to  pass  the  line  which  circumscribes  the  judi- 
cial department,  and  to  tread  on  legislative  ground." 

It  is  plain  to  our  view,  however,  that  none  of  those  measures 
which  it  is  now  conjectured  might  have  been  substituted  for  the 
legal  tender  acts  could  have  met  the  exigencies  of  the  case,  at  the 
time  when  those  acts  were  passed.  We  have  said  that  the  credit 
of  the  government  had  been  tried  to  its  utmost  endurance.  Every 
new  issue  of  notes  which  had  nothing  more  to  rest  upon  than 
government  credit,  must  have  paralyzed  it  more  and  more,  and 
rendered  it  increasingly  difficult  to  keep  the  army  in  the  field,  or 
the  navy  afloat.  It  is  an  historical  fact  that  many  persons  and  in- 
stitutions refused  to  receive  and  pay  those  notes  that  had  been 
issued,  and  even  the  head  of  the  treasury  represented  to  Congress 
the  necessity  of  making  the  new  issues  legal  tenders,  or  rather, 
declared  it  impossible  to  avoid  the  necessity.  The  vast  body  of 
men  in  the  military  service  was  composed  of  citizens  who  had  left 
their  farms,  their  work-shops,  and  their  business,  with  families 
and  debts  to  be  provided  for.  The  government  could  not  pay 
them  with  ordinary  treasury  notes,  nor  could  they  discharge  their 
debts  with  such  a  currency.  Something  more  was  needed,  some- 
thing that  had  all  the  uses  of  money.  And  as  no  one  could  be 
compelled  to  take  common  treasury  notes  in  payment  of  debts, 
and  as  the  prospect  of  ultimate  redemption  was  remote  and  con- 
tingent, it  is  not  too  much  to  say  that  they  must  have  depreciated 
in  the  market  long  before  the  war  closed,  as  did  the  currency  of 
the  Confederate  States.    Making  the  notes  legal  tenders  gave  them 


LEGAL   TENDER    CASES.  147 

a  new  use,  and  it  needs  no  argument  to  show  that  the  value  of 
things  is  in  proportion  to  the  uses  to  which  they  may  be  applied. 

It  may  be  conceded  that  Congress  is  not  authorized  to  enact  laws 
in  furtherance  even  of  a  legitimate  end,  merely  because  they  are 
useful,  or  because  they  make  the  government  stronger.  There  must 
be  some  relation  between  the  means  and  the  end;  some  adapted- 
ness  or  appropriateness  of  the  laws  to  carry  into  execution  the 
powers  created  by  the  Constitution.  But  when  a  statute  has 
proved  effective  in  the  execution  of  powers  confessedly  existing, 
it  is  not  too  much  to  say  that  it  must  have  had  some  appro- 
priateness to  the  execution  of  those  powers.  The  rules  of  con- 
struction heretofore  adopted,  do  not  demand  that  the  relation- 
ship between  the  means  and  the  end  shall  be  direct  and  imme- 
diate. Illustrations  of  this  may  be  found  in  several  of  the  cases 
above  cited.  The  charter  of  a  bank  of  the  United  States,  the  prior- 
ity given  to  debts  due  the  government  over  private  debts,  and  the 
exemption  of  Federal  loans  from  liability  to  State  taxation,  are 
only  a  few  of  the  many  which  might  be  given.  The  case  of 
Veazie  Bank  v.  Fenno,^  presents  a  suggestive  illustration.  There 
a  tax  of  ten  per  cent,  on  State  bank  notes  in  circulation  was  held 
constitutional,  not  merely  because  it  was  a  means  of  raising  reve- 
nue, but  as  an  instrument  to  put  out  of  existence  such  a  circula- 
tion in  competition  with  notes  issued  by  the  government.  There, 
this  court,  speaking  through  the  Chief  Justice,  avowed  that  it  is 
the  constitutional  right  of  Congress  to  provide  a  currency  for  the 
whole  country;  that  this  might  be  done  by  coin,  or  United  States 
notes,  or  notes  of  National  banks;  and  that  it  cannot  be  ques- 
tioned Congress  may  constitutionally  secure  the  benefit  of  such 
a  currency  to  the  people  by  appropriate  legislation.  It  was  said 
there  can  be  no  question  of  the  power  of  this  government  to  emit 
bills  of  credit;  to  make  them  receivable  in  payment  of  debts  to 
itself;  to  fit  them  for  use  by  those  who  see  fit  to  use  them  in  all 
the  transactions  of  commerce;  to  make  them  a  currency  uniform 
in  value  and  description,  and  convenient  and  useful  for  circula- 
tion. Here  the  substantive  power  to  tax  was  allowed  to  be  em- 
ployed for  improving  the  currency.  It  is  not  easy  to  see  why, 
if  State  bank  notes  can  be  taxed  out  of  existence  for  the  purposes 
of  indirectly  making  United  States  notes  more  convenient  and 
useful  for  commercial  purposes,  the  same  end  may  not  be  secured 
directly  by  making  them  a  legal  tender. 

Concluding,  then,  that  the  provision  which  made  ^treasury  notes 

1 8  Wallace,  533. 


148  CASES   ON  CONSTITUTIONAL   LAW. 

a  legal  tender  for  the  payment  of  all  debts  other  than  those  ex- 
pressly excepted,  was  not  an  inappropriate  means  for  carrying  into 
execution  the  legitimate  powers  of  the  government,  we  proceed 
to  inquire  whether  it  was  forbidden  by  the  letter  or  spirit  of  the 
Constitution.  It  is  not  claimed  that  any  express  prohibition 
exists,  but  it  is  insisted  that  the  spirit  of  the  Constitution  was 
violated  by  the  enactment.  Here  those  who  assert  the  unconsti- 
tutionality of  the  acts  mainly  rest  their  argument.  They  claim 
that  the  clause  which  conferred  upon  Congress  power  "to  coin 
money,  regulate  the  value  thereof,  and  of  foreign  coin,"  contains 
an  implication  that  nothing  but  that  which  is  the  subject  of  coin- 
age, nothing  but  the  precious  metals  can  ever  be  declared  by  law 
to  be  money,  or  to  have  the  uses  of  money.  If  by  this  is  meant 
that  because  certain  powers  over  the  currency  are  expressly  given 
to  Congress,  all  other  powers  relating  to  the  same  subject  are 
impliedly  forbidden,  we  need  only  remark  that  such  is  not  tlie 
manner  in  which  the  Constitution  has  always  been  construed.  On 
the  contrary  it  has  been  ruled  that  power  over  a  particular  subject 
may  be  exercised  as  auxiliary  to  an  express  power,  though  there 
is  another  express  power  relating  to  the  same  subject,  less  com- 
prehensive.- There  an  express  power  to  punish  a  certain  class 
of  crimes  (the  only  direct  reference  to  criminal  legislation  con- 
tained in  the  Constitution),  was  not  regarded  as  an  objection  to 
deducing  authority  to  punish  other  crimes  from  another  sub- 
stantive and  defined  grant  of  power.  There  are  other  decisions 
/to  the  same  effect.  To  assert,  then,  that  the  clause  enabling  Con- 
1  gress  to  coin  money  and  regulate  its  value  tacitly  implies  a  denial 
I  of  all  other  power  over  the  currency  of  the  nation,  is  an  attemnt 
\  to  introduce  a  new  rule  of  construction  against  the  solemn  deci- 
i  sions  of  this  court.  So  far  from  its  containing  a  lurking  prohi- 
bition, many  have  thought  it  was  intended  to  confer  upon  Con- 
gress that  general  power  over  the  currency  which  has  always  been 
an  acknowledged  attribute  of  sovereignty  in  every  other  civilized 
nation  than  our  own,  especially  when  considered  in  connection 
with  the  other  clause  which  denies  to  the  States  the  power  to  coin 
money,  emit  bills  of  credit,  or  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts.  We  do  not  assert  this  now, 
but  there  are  some  considerations  touching  these  clauses  which 
tend  to  show  that  if  any  implications  are  to  be  deduced  from 
them,  they  are  of  an  enlarging  rather  than  a  restraining  char- 
acter.    The  Constitution  was  intended  to  frame  a  government  as 

2  United   States  v.   Marigold,   9  Howard,  560. 


LEGAL   TENDER    CASES.  149 

distinguished  from  a  league  or  compact,  a  government  supreme 
in  some  particulars  over  States  and  people.  It  was  designed  to 
provide  the  same  currency,  having  a  uniform  legal  value  in  all 
the  States.  It  was  for  this  reason  the  power  to  coin  money  and 
regulate  its  value  was  conferred  upon  the  Federal  government, 
while  the  same  power  as  well  as  the  power  to  emit  bills  of  credit 
was  withdrawn  from  the  States.  The  States  can  no  longer  de- 
clare what  shall  be  money,  or  regulate  its  value.  Whatever  power 
there  is  over  the  currency  is  vested  in  Congress.  If  the  power 
to  declare  what  is  money  is  not  in  Congress,  it  is  annihilated.  This 
may  indeed  have  been  intended.  Some  powers  that  usually  belong 
to  sovereignties  were  extinguished,  but  their  extinguishment  was 
not  left  to  inference.  In  most  cases,  if  not  in  all,  when  it  was  in- 
tended that  governmental  powers,  commonly  acknowledged  as 
such,  should  cease  to  exist,  both  in  the  States  and  in  the  Federal 
government,  it  was  expressly  denied  to  both,  as  well  lo  the 
Tnited  States  as  to  the  individual  States.  And  generally,  when 
one  of  such  powers  was  expressly  denied  to  the  States  only,  it 
was  for  the  purpose  of  rendering  the  Federal  power  more  com- 
plete and  exclusive.  .  Why,  then,  it  may  be  asked,  if  the  design 
was  to  prohibit  to  the  new  government,  as  well  as  to  the  States, 
that  general  power  over  the  currency  which  the  States  had  when 
the  Constitution  was  framed,  was  such  denial  not  expressly  ex- 
tended' to  the  new  government,  as  it  was  to  the  States?  In  view 
of  this  it  might  be  argued  with  much  force  that  when  it  is  con- 
sidered in  what  brief  and  comprehensive  terms  the  Constitution 
speaks,  how  sensible  its  framers  must  have  been  that  emergencies 
might  arise  when  the  precious  metals  (then  more  scarce  than  now) 
might  prove  inadequate  to  the  necessities  of  the  government  and 
the  demands  of  the  people — when  it  is  remembered  that  paper 
money  was  almost  exclusively  in  use  in  the  States  as  the  medium 
of  exchange,  and  when  the  great  evil  sought  to  be  remedied  was 
the  want  of  uniformity  in  the  current  value  of  money,  it  might 
be  argued,  we  say,  that  the  gift  of  power  to  coin  money  and  reg- 
ulate the  value  thereof,  was  understood  as  conveying  general  power 
over  the  currency,  the  power  which  had  belonged  to  the  States, 
and  which  they  surrendered.  Such  a  construction,  it  might  be 
said,  would  be  in  close  analogy  to  the  mode  of  construing  other 
substantive  powers  granted  to  Congress.  They  have  never  been 
construed  literally,  and  the  government  could  not  exist  if  they 
were.  Thus  the  power  to  carry  on  war  is  conferred  by  the  power 
to  "declare  war."  The  whole  system  of  the  transportation  of  the 
mails  is  built  upon  the  power  to  establish  post-offices  and  post- 


150  CASES   ON  CONSTITUTIONAL   LAW. 

roads.  The  power  to  regulate  commerce  has  also  been  extended 
far  beyond  the  letter  of  the  grant.  Even  the  advocates  of  a  strict 
literal  construction  of  the  phrase,  "to  coin  money  and  regulate  the 
value  thereof,"  while  insisting  that  it  defines  the  material  to  be 
coined  as  metal,  are  compelled  to  concede  to  Congress  large  dis- 
cretion in  all  other  particulars.  The  Constitution  does  not  ordain 
what  metals  may  be  coined,  or  prescribe  that  the  legal  value  of 
the  metals,  when  coined,  shall  correspond  at  all  with  their  intrinsic 
value  in  the  market.  Nor  does  it  even  affirm  that  Congress  may 
declare  anything  to  be  a  legal  tender  for  the  payment  of  debts. 
Confessedly  the  power  to  regulate  the  value  of  money  coined,  and 
of  foreign  coins,  is  not  exhausted  by  the  first  regulation.  More 
than  once  in  our  history  has  the  regulation  been  changed  with- 
out any  denial  of  the  power  of  Congress  to  change  it,  and  it  seems 
to  have  been  left  to  Congress  to  determine  alike  what  metal  shall 
be  coined,  its  purity,  and  how  far  its  statutory  value,  as  money, 
shall  corespond,  from  time  to  time,  with  the  market  value  of  the 
same  metal  as  bullion.  How  then  can  the  grant  of  a  power  to  coin 
money  and  regulate  its  value,  made  in  terms  so  liberal  and  unre- 
strained, coupled  also  with  a  denial  to  the  States  of  all  power 
over  the  currency,  be  regarded  as  an  implied  prohibition  to  Con- 
gress against  declaring  treasury  notes  a  legal  tender,  if  such  declara- 
tion is  appropriate,  and  adapted  to  carrying  into  execution  the  ad- 
mitted powers  of  the  government? 

We  do  not,  however,  rest  our  assertion  of  the  power  of  Congress 
[to  enact  legal  tender  laws  upon  this  grant.  We  assert  only  that 
[the  grant  can,  in  no  just  sense,  be  regarded  as  containing  an 
implied  prohibition  against  their  enactment,  and  that,  if  it  raises 
any  implications,  they  are  of  complete  power  over  the  currency, 
.[  rather  than  restraining. 

We  come  next  to  the  argument  much  used,  and,  indeed,  the 
main  reliance  of  those  who  assert  the  unconstitutionality  of  the 
legal  tender  acts.  It  is  that  they  are  prohibited  by  the  spirit  of 
the  Constitution  because  they  indirectly  impair  the  obligation  of 
contracts.  The  argument,  of  course,  relates  only  to  those  con- 
tracts which  were  made  before  February,  1862,  when  the  first 
act  was  passed,  and  it  has  no  bearing  upon  the  question  whether 
the  acts  are  valid  when  applied  to  contracts  made  after  their  pas- 
sage. The  argument  assumes  two  things, — first,  that  the  acts  do, 
in  effect,  impair  the  obligation  of  contracts,  and  second,  that 
Congress  is  prohibited  from  taking  any  action  which  may  indi- 
;  rectly  have  that  effect.  Neither  of  these  assumptions  can  be  ac- 
'  cepted.     It  is  true,  that,  under  the  acts,  a  debtor,  who  became 


LEGAL   TENDER    CASES.  151 

such,  before  they  were  passed,  may  discharge  his  debt  with  the 
notes  authorized  by  them,  and  the  creditor  is  compellable  to  re- 
ceive such  notes  in  discharge  of  his  claim.  But  whether  the  obli- 
gation of  the  contract  is  thereby  weakened  can  be  determined 
only  after  considering  what  was  the  contract  obligation.  It  was 
not  a  duty  to  pay  gold  or  silver,  or  the  kind  of  money  recognized 
by  law  at  the  time  when  the  contract  was  made,  nor  was  it  a  duty 
to  pay  money  of  equal  intrinsic  value  in  the  market.  (We  speak 
now  of  contracts  to  pay  money  generally,  not  contracts  to  pay  some 
specifically  defined  species  of  money.)  The  expectation  of  the  cred- 
itor and  the  anticipation  of  the  debtor  may  have  been  that  the 
contract  would  be  discharged  by  the  payment  of  coined  metals, 
^ut  neither  the  expectation  of  one  party  to  the  contract  respecting 
its  fruits,  nor  the  anticipation  of  the  other  constitutes  its  obliga- 
tion. There  is  a  well-recognized  distinction  between  the  expecta- 
tion of  the  parties  to  a  contract  and  the  duty  imposed  by  it.* 
Were  it  not  so  the  expectation  of  results  would  be  always  equiva- 
lent to  a  binding  engagement  that  they  should  follow.  But  the 
obligation  of  a  contract  to  pay  money  is  to  pay  that  which  the 
law  shall  recognize  as  money  when  the  payment  is  to  be  made. 
If  there  is  anything  settled  by  decision  it  is  this,  and  we  do  not 
understand  it  to  be  controverted.^  No  one  ever  doubted  that 
a  debt  of  one  thousand  dollars,  contracted  before  1834,  could  be 
paid  by  one  hundred  eagles  coined  after  that  year,  though  they 
contained  no  more  gold  than  ninety-four  eagles  such  as  were  coined 
when  the  contract  was  made,  and  this,  not  because  of  the  intrinsic 
value  of  the  coin,  but  because  of  its  legal  value.  The  eagles 
coined  after  1834  were  not  money  until  they  were  authorized  by 
law,  and  had  they  been  coined  before,  without  a  law  fixing  their 
legal  value,  they  could  no  more  have  paid  a  debt  than  uncoined 
bullion,  or  cotton,  or  wheat.  Every  contract  for  the  payment  of 
money,  simply,  is  necessarily  subject  to  the  constitutional  power 
of  the  government  over  the  currency,  whatever  that  power  may 
be,  and  the  obligation  of  the  parties  is,  therefore,  assumed  with 
reference  to  that  power.  Nor  is  this  singular.  A  covenant  for 
quiet  enjoyment  is  not  broken,  nor  is  its  obligation  impaired  b}' 
the  government's  taking  the  land  granted  in  virtue  of  its  right  of 
eminent  domain.  The  expectation  of  the  covenantee  may  be  dis- 
appointed.   He  may  not  enjoy  all  he  anticipated,  but  the  grant 

1  Apsden  v.  Austin,  5  Adolphus  2  Davies,  28;    Barrington  v.  Pot- 

&  Ellis,  N.  S.,  671;   Dunn  v.  Sayles,  ter.  Dyer,  81,  b.   fol.   67;   Faw  v. 

lb.,    685;     Coffin     v!     Landis,     10  Marsteller,  2  Cranch,  29. 
Wright,  426. 


152  CASES   ON  CONSTITUTIONAL   LAW. 

was  made  and  the  covenant  undertaken  in  subordination  to  the 
paramount  right  of  the  government.^  We  have  been  asked  whether 
Congress  can  declare  that  a  contract  to  deliver  a  quantity  of  grain 
may  be  satisfied  by  the  tender  of  a  less  quantity.  Undoubtedly 
not.  But  this  is  a  false  analogy.  There  is  a  wide  distinction  be- 
tween a  tender  of  quantities,  or  of  specific  articles,  and  a  tender 
of  legal  values.  Contracts  for  the  delivery  of  specific  articles 
belong  exclusively  to  the  domain  of  State  legislation,  while  con- 
tracts for  the  payment  of  money  are  subject  to  the  authority  of 
Congress,  at  least  so  far  as  relates  to  the  means  of  payment.  They 
are  engagements  to  pay  with  lawful  money  of  the  United  States, 
and  Congress  is  empowered  to  regulate  that  money.  It  cannot, 
therefore,  be  maintained  that  the  legal  tender  acts  impaired  the 
obligation  of  contracts. 

Nor  can  it  be  truly  asserted  that  Congress  may  not,  by  its  action, 
indirectly  impair  the  obligation  of  contracts,  if  by  the  expression 
be  meant  rendering  contracts  fruitless,  or  partially  fruitless.  Di- 
rectly it  may,  confessedly,  by  passing  a  bankrupt  act,  embracing 
past  as  well  as  future  transactions.  This  is  obliterating  contracts 
entirely.  So  it  may  relieve  parties  from  their  aparent  obliga- 
tions indirectly  in  a  multitude  of  ways.  It  may  declare  war,  or,  even 
in  peace,  pass  non-intercourse  acts  or  direct  an  embargo.  All  such 
measures  may,  and  must  operate  seriously  upon  existing  contracts, 
and  may  not  merely  hinder,  but  relieve  the  parties  to  such  con- 
tracts entirely  from  performance.  It  is,  then,  clear  that  the  powers 
of  Congress  may  be  exerted,  though  the  effect  of  such  exertion 
may  be  in  one  case  to  annul,  and  in  other  cases  to  impair  the 
obligation  of  contracts.  And  it  is  no  suflScient  answer  to  this 
to  say  it  is  true  only  when  the  powers  exerted  were  expressly 
granted.  There  is  no  ground  for  any  such  distinction.  It  has  no 
warrant  in  the  Constitution,  or  in  any  of  the  decisions  of  this 
court.  We  are  accustomed  to  speak  for  mere  convenience  of  the 
express  and  implied  powers  conferred  upon  Congress.  But  in  fact 
the  auxiliary  powers,  those  necessa^:y  and  appropriate  to  the  exe- 
cution of  other  powers  singly  described,  are  as  expressly  given  as 
is  the  power  to  declare  war,  or  to  establish  uniform  laws  on  the 
subject  of  bankruptcy.  They  are  not  catalogued,  no  list  of  them 
is  made,  but  they  are  grouped  in  the  last  clause  of  section  eight 
of  the  first  article,  and  granted  in  the  same  words  in  which  all 
other  powers  are  granted  to  Congress.  And  this  court  has  recog- 
nized no  such  distinction  as  is  now  attempted.    An  embargo  sus- 

8  Dobbins    v.    Brown,    2    Jones    (Pennsylvania),  75;    Workman  v. 
Mifflin,  6  Casey,  362. 


LEGAL   TENDER    CASES.  153 

pends  many  contracts  and  renders  performance  of  others  impos- 
sible, yet  the  power  to  enforce  it  has  been  declared  constitutional.* 
The  power  to  enact  a  law  directing  an  embargo  is  one  of  the  aux- 
iliary powers,  existing  only  because  appropriate  in  time  of  peace 
to  regulate  commerce,  or  appropriate  to  carrying  on  war.  Though 
not  conferred  as  a  substantive  power,  it  has  not  been  thought 
to  be  in  conflict  with  the  Constitution,  because  it  impairs  indirectly 
the  obligation  of  contracts.  That  discovery  calls  for  a  new  read- 
ing of  the  Constitution. 

If,  then,  the  legal  tender  acts  were  justly  chargeable  with  im- 
pairing contract  obligations,  they  would  not,  for  that  reason,  be 
forbidden,  unless  a  different  rule  is  to  be  applied  to  them  from 
that  which  has  hitherto  prevailed  in  the  construction  of  other 
powers  granted  by  the  fundamental  law.  But,  as  already  inti- 
mated, the  objection  misapprehends  the  nature  and  extent  of  the 
contract  obligation  spoken  of  in  the  Constitution.  As  in  a  state 
of  civil  society  property  of  a  citizen  or  subject  is  ownership,  sub- 
ject to  the  lawful  demands  of  the  sovereign,  so  contracts  must  be 
understood  as  made  in  reference  to  the  possible  exercise  of  the 
rightful  authority  of  the  government,  and  no  obligation  of  a  con- 
tract can  extend  to  the  defeat  of  legitimate  government  authority. 

Closely  allied,  to  the  objection  we  have  just  been  considering 
is  the  argument  pressed  upon  us  that  the  legal  tender  acts  were 
prohibited  by  the  spirit  of  the  fifth  amendment,  which  forbids 
taking  private  property  for  public  use  without  just  compensa- 
tion or  due  process  of  law.  That  provision  has  always  been  under- 
stood as  referring  only  to  a  direct  appropriation,  and  not  to  con- 
sequential injuries  resulting  from  the  exercise  of  lawful  power. 
It  has  never  been  supposed  to  have  any  bearing  upon,  or  to  in- 
hibit laws  that  indirectly  work  harm  and  loss  to  individuals.  A 
new  tariff,  an  embargo,  a  draft,  or  a  war  may  inevitably  bring  upon 
individuals  great  losses;  may,  indeed,  render  valuable  property 
almost  valueless.  They  may  destroy  the  worth  of  contracts.  Bui 
who  ever  supposed  that,  because  of  this,  a  tariff  could  not  be 
changed,  or  a  non-intercourse  act,  or  an  embargo  be  enacted,  or  a 
war  be  declared?  By  the  act  of  June  28,  1834,  a  new  regula- 
tion of  the  weight  and  value  of  gold  coin  was  adopted,  and  about 
six  per  cent,  was  taken  from  the  weight  of  each  dollar.  The  effect 
of  this  was  that  all  creditors  were  subjected  to  a  corresponding 
loss.  The  debts  then  due  became  solvable  with  six  per  cent,  less 
gold  than  was  required  to  pay  them  before.    The  result  was  thus 

4  Gibbons   v.    Ogden,    9    Wheaton,  1. 


164  CASES   ON  CONSTITUTIONAL   LAW. 

precisely  what  it  is  contended  the  legal  tender  acts  worked.  But 
was  it  ever  imagined  this  was  taking  private  property  without  com- 
pensation or  without  due  process  of  law?  Was  the  idea  ever  ad- 
vanced that  the  new  regulation  of  gold  coin  was  against  the  spirit 
of  the  fifth  amendment?  And  has  any  one  in  good  faith  avowed 
his  belief  that  even  a  law  debasing  the  current  coin,  by  increasing 
the  alloy,  would  be  taking  private  property?  It  might  be  im- 
politic and  unjust,  but  could  its  constitutionality  be  doubted? 
Other  statutes  have,  from  time  to  time,  reduced  the  quantity  of 
silver  in  silver  coin  without  any  question  of  their  constitutionality. 
It  is  said,  however,  now,  that  the  act  of  1834:  only  brought  the 
legal  value  of  gold  coin  more  nearly  into  correspondence  with  its 
actual  value  in  the  market,  or  its  relative  value  to  silver.  But  we 
do  not  perceive  that  this  varies  the  case  or  diminishes  its  force 
as  an  illustration.  The  creditor  who  had  a  thousand  dollars 
due  him  on  the  31st  day  of  July,  1834  (the  day  before  the  act  took 
effect),  was  entitled  to  a  thousand  dollars  of  coined  gold  of  the 
rate  and  fineness  of  the  then  existing  coinage.  The  day  after, 
he  was  entitled  only  to  a  sum  six  per  cent,  less  in  weight  and 
in  market  value,  or  to  a  smaller  number  of  silver  dollars.  Yet 
he  would  have  been  a  bold  man  who  had  asserted  that,  because  of 
this,  the  obligation  of  the  contract  was  impaired,  or  that  private 
property  was  taken  without  compensation  or  without  due  process 
of  law.  No  such  assertion,  so  far  as  we  know,  was  ever  made. 
Admit  it  was  a  hardship,  but  it  is  not  every  hardship  that  is  unju&t, 
much  less  that  is  unconstitutional;  and  certainly  it  would  be  an 
anomaly  for  us  to  hold  an  act  of  Congress  invalid  merely  because 
we  might  think  its  provisions  harsh  and  unjust. 

We  are  not  aware  of  anything  else  which  has  been  advanced  in 
support  of  the  proposition  that  the  legal  tender  acts  were  forbidden 
by  either  the  letter  or  the  spirit  of  the  Constitution.  If,  therefore, 
they  were,  what  we  have  endeavored  to  show,  appropriate  means 
for  legitimate  ends,  they  were  not  transgressive  of  the  authority 
vested  in  Congress. 

Here  we  might  stop;  but  we  will  notice  briefly  an  argument  pre- 
sented in  support  of  the  position  that  the  unit  of  money  value 
must  possess  intrinsic  value.  The  argument  is  derived  from  assim- 
ilating the  constitutional  provision  respecting  a  standard  of  weights 
and  measurer  to  that  conferring  the  power  -to  coin  money  and 
regulafte  its  value.  It  is  said  there  can  be  no  uniform  standard  of 
weights  without  weight,  or  of  measure  without  length  or  space,  and 
we  are  asked  how  anything  can  be  made  a  uniform  standard  of 
value  which  has  itself  no  value?    This  is  a  question  foreign  to  the 


LEGAL   TENDER    CASES.  155 

subject  before  us.  The  legal  tender  acts  do  not  attempt  to  make 
pai:)er  a  standard  of  value.  We  do  not  rest  their  validity  upon 
the  assertion  that  their  emission  is  coinage,  or  any  regulation  of  the 
value  of  money;  nor  do  we  assert  that  Congress  may  make  any- 
thing which  has  no  value  money.  What  we  do  assert  is,  that 
Congress  has  power  to  enact  that  the  government's  promises  to 
pay  money  shall  be,  for  the  time  being,  equivalent  in  value  to  the 
representative  of  value  determined  by  the  coinage  acts,  or  to  mul- 
tiples thereof.  It  is  hardly  correct  to  speak  of  a  standard  of  value. 
The  Constitution  does  not  speak  of  it.  It  contemplates  a  standard 
for  that  which  has  gravity  or  extension;  but  value  is  an  ideal 
thing.  The  coinage  acts  fix  its  unit  as  a  dollar;  but  the  gold  or 
silver  thing  we  call  a  dollar  is,  in  no  sense,  a  standard  of  a  dollar. 
It  is  a  representative  of  it.  There  might  never  have  been  a  piece 
of  money  of  the  denomination  of  a  dollar.  There  never  was  a 
pound  sterling  coined  until  1815,  if  we  except  a  few  coins  struck 
in  the  reign  of  Henry  VIII.,  almost  immediately  debased,  yet  it 
has  been  the  unit  of  British  currency  for  many  generations.  It 
is,  then,  a  mistake  to  regard  the  legal  tender  acts  as  either  fixing 
a  standard  of  value  or  regulating  money  values,  or  making  that 
money  which  has  no  intrinsic  value. 

But,  without  extending  our  remarks  further,  it  will  be  seen  that 
we  hold  the  acts  of  Congress  constitutional  as  applied  to  contracts 
made  either  before  or  after  their  passage.  In  so  holding,  we  over- 
rule so  much  of  what  was  decided  in  Hepburn  v.  Griswold,^  as 
ruled  the  acts  unwarranted  by  the  Constitution  so  far  as  they  apply 
to  contracts  made  before  their  enactment.  That  case  was  decided 
by  a  divided  court,  and  by  a  court  having  a  less  number  of  judges 
than  the  law  then  in  existence  provided  this  court  shall  have. 
These  cases  have  been  heard  before  a  full  court,  and  they  have  re- 
ceived our  most  careful  consideration.  The  questions  involved 
are  constitutional  questions  of  the  most  vital  importance  to  the 
government  and  to  the  public  at  large.  We  have  been  in  the  habit 
of  treating  cases  involving  a  consideration  of  constitutional  power 
differently  from  those  which  concern  merely  private  right.^  We 
are  not  accustomed  to  hear  them  in  the  absence  of  a  full  court,  if 
it  can  be  avoided.  Even  in  cases  involving  only  private  rights,  if 
convinced  we  had  made  a  mistake,  we  would  hear  another  argu- 
ment and  correct  our  error.  And  it  is  no  unprecedented  thing  in 
courts  of  last  resort,  both  in  this  country  and  in  England,  to  over- 

18  Wallace.  603.  2  Briscoe  v.  Bank  of  Kentucky, 

8  Peters,  118. 


156  CASES   ON  CONSTITUTIONAL   LAW. 

rule  decisions  previously  made.  We  agree  this  should  not  be  done 
inconsiderately,  but  in  a  ease  of  such  far-reaching  consequences 
as  the  present,  thoroughly  convinced  as  we  are  that  Congress  has 
not  transgressed  its  powers,  we  regard  it  as  our  duty  so  to  decide 
and  to  affirm  both  these  judgments. 

The  other  questions  raised  in  the  case  of  Knox  v.  Lee  were  sub- 
stantially decided  in  Texas  v.  White.^ 

Judgment  in  each  case  affirmed. 

Mr.  Justice  Bradley,  concurring.  .  .  .  The  Constitution 
of  the  United  States  established  a  government,  and  not  a  league, 
compact,  or  partnership.  .  .  .  The  United  States  is  not  only 
a  government,  but  it  is  a  National  government,  and  the  only  gov- 
ernment in  this  country  that  has  the  character  of  nationality. 
.  .  .  Such  being  the  character  of  the  General  government,  it 
seems  to  be  a  self-evident  proposition  that  it  is  invested  with  all 
those  inherent  and  implied  powers  which,  at  the  time  of  adopting 
the  Constitution,  were  generally  considered  to  belong  to  every 
government  as  such,  and  as  being  essential  to  the  exercise  of  its 
functions.  If  this  proposition  be  not  true,  it  certainly  is  true 
that  the  government  of  the  United  States  has  express  authority, 
in  the  clause  last  quoted,  to  make  all  such  laws  (usually  regarded 
as  inherent  and  implied)  as  may  be  necessary  and  proper  for  carry- 
ing on  the  government  as  constituted,  and  vindicating  its  authority 
and  existence. 

Another  proposition  equally  clear  is,  that  at  the  time  the  Con- 
stitution was  adopted,  it  was  and  had  for  a  long  time  been,  the 
practice  of  most,  if  not  all,  civilized  governments,  to  employ 
the  public  credit  as  a  means  of  anticipating  the  national  revenues 
for  the  purpose  of  enabling  them  to  exercise  their  governmental 
functions,  and  to  meet  the  various  exigencies  to  which  all  nations 
are  subject,  and  that  the  mode  of  employing  the  public  credit 
was  various  in  different  countries,  and  at  different  periods — some- 
times by  the  agency  of  a  national  bank,  sometimes  by  the  issue  of 
exchequer  bills  or  bills  of  credit,  and  sometimes  by  pledges  of  the 
public  domain.     .     .     . 

These  precedents  are  cited  without  reference  to  the  policy  or 
impolicy  of  the  several  measures  in  the  particular  cases;  that  is 
always  a  question  for  the  legislative  discretion.  They  establish 
the  historical  fact  that  when  the  Constitution  was  adopted,  the 
employment  of  bills  of  credit  was  deemed  a  legitimate  means  of 
meeting  the  exigencies  of  a  regularly  constituted  government,  and 

3  7  Wallace,  700. 


JUILLIARD  V.  GREENMAN.  187 

that  the  affixing  to  them  of  the  quaUty  of  a  legal  tender  was  re- 
garded as  entirely  discretionary  with  the  legislature.     ... 

In  view,  therefore,  of  all  these  facts,  when  we  find  them  estab- 
lishing the  present  government,  with  all  the  powers  before  re- 
hearsed, giving  to  it,  amongst  other  things,  the  sole  control  of  the 
money  of  the  country  and  expressly  prohibiting  the  States  from 
issuing  bills  of  credit  and  from  making  anything  but  gold  and 
silver  a  legal  tender,  and  imposing  no  such  restriction  upon  the 
General  government,  how  can  we  resist  the  conclusion  that  they 
intended  to  leave  to  it  that  power  unimpaired,  in  case  the  future 
exigencies  of  the  nation  should  require  its  exercise?     .     .     . 

In  my  judgment  the  decrees  in  all  the  cases  before  us  should 
be  affirmed. 

[The  Chief  Justice  and  Justices  Clifford  and  Field  each 
delivered  dissenting  opinions.  Mr.  Justice  Nelson  also  dis- 
sented.] 

Note. — Compare  the  language  of  Justice  Bradley  with  the 
following  sentences  from  James  Wilson's  Considerations  on  the 
Power  to  Incorporate  the  Bank  of  North  America,  Works 
(Andrews'  Edition),  I.,  558: 

"To  many  purposes,  the  United  States  are  to  be  considered  as 
one  undivided,  independent  nation,  and  as  possessed  of  all  the 
rights,  and  powers,  and  properties,  by  the  law  of  nations  incident 
to  such.  Whenever  an  object  occurs,  to  the  direction  of  which  no 
particular  state  is  competent,  the  management  of  it  must,  of  neces- 
sity, belong  to  the  United  States  in  congress  assembled.  There 
are  many  objects  of  this  extended  nature."  •> 


LEGAL  TENDEE  CASE. 

JUILLIARD  V.   GREENMAN.. 

110  U.  S.,  421.    Decided  1884. 

Juilliaed,  a  citizen'  of  New  York,  brought  an  action  against 
Greenman,  a  citizen  of  Connecticut,  in  the  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  New  York,  alleging 
that  the  plaintiff  sold  and  delivered  to  the  defendant,  at  his  spe- 


158  CASES  ON   CONSTITUTIONAL   LAW. 

cial  instance  and  request,  one  hundred  bales  of  cotton,  of  the  value 
and  for  the  agreed  price  of  $5,122.90;  and  that  the  defendant 
agreed  to  pay  that  sum  in  cash  on  the  delivery  of  the  cotton,  and 
had  not  paid  the  same  or  any  part  thereof,  except  that  he  had 
paid  the  sum  of  $22.90  on  account,  and  was  now  justly  indebted 
to  the  plaintiff  therefor  in  the  sum  of  $5,100;  and  demanding 
judgment  for  this  sum  with  interest  and  costs. 

The  defendant  in  his  answer  admitted  the  citizenship  of  the 
parties,  the  purchase  and  delivery  of  the  cotton,  and  the  agreement' 
to  pay  therefor,  as  alleged;  and  averred  that,  after  the  delivery 
of  the  cotton,  he  offered  and  tendered  to  the  plaintiff,  in  full 
payment,  $22.50  in  gold  coin  of  the  United  States,  forty  cents  in 
silver  coin  of  the  United  States,  and  two  United  States  notes,  one 
of  the  denomination  of  $i5,000,  and  the  other  of  the  denomina- 
tion of  $100,  of  the  description  known  as  United  States  legal 
tender  notes,  purporting  by  recital  thereon  to  be  legal  tender,  at 
their  respective  face  values,  for  all  debts,  public  and  private, 
except  duties  on  imports  and  interest  on  the  public  debt,  and 
which  after  having  been  presented  for  payment,  and  redeemed 
and  paid  in  gold  coin,  since  January  1st,  1879,  at  the  United 
States  sub-treasury  in  New  York,  had  been  reissued  and  kept  in 
circulation  under  and  in  pursuance  of  the  act  of  Congress  of  May 
31st,  1878,  ch.  146;  that  at  the  time  of  offering  and  tendering 
these  notes  and  coin  to  the  plaintiff,  the  sum  of  $5,122.90  was 
the  entire  amount  due  and  owing  in  payment  for  the  cotton,  but 
the  plaintiff  declined  to  receive  the  notes  in  payment  of  $5,100 
thereof;  and  that  the  defendant  had  ever  since  remained,  and 
still  was,  ready  and  willing  to  pay  to  the  plaintiff  the  sum  of 
$5,100  in  these  notes,  and  brought  these  notes  into  court  ready 
to  be  paid  to  the  plaintiff,  if  he  would  accept  them. 

The  plaintiff  demurred  to  the  answer,  upon  the  grounds  that  the 
defense,  consisting  of  new  matter,  was  insufficient  in  law  upon 
its  face,  and  that  the  facts  stated  in  the  answer  did  not  con- 
stitute any  defense  to  the  cause  of  action  alleged. 

The  Circuit  Court  overruled  the  demurrer  and  gave  judgment 
for  the  defendant,  and  the  plaintiff  sued  out  this  writ  of  error. 


Mb.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  amount  which  the  plaintiff  seeks  to  recover,  and  which, 
if  the  tender  pleaded  is  insufficient  in  law,  he  is  entitled  to  recover, 
is  $5,100.    There  ceui,  therefore,  be  no  doubt  of  the  jurisdiction 


JUILLIARD  V.  GREENMAN.  159 

of  this  court  to  revise  the  judgment  of  the  Circuit  Court.    Act  of 
February  16th,  1875,  ch.  77,  §  3;   18  Stat.,  315. 

The  notes  of  the  United  States,  tendered  in  payment  of  the 
defendant's  debt  to  the  plaintiff,  were  originally  issued  under  the 
acts  of  Congress  of  February  25th,  1862,  eh.  33,  July  11th,  1862, 
ch.  142,  and  March  3d,  1863,  ch.  73,  passed  during  the  war  of 
the  rebellion,  and  enacting  that  these  notes  should  "be  lawful 
money  and  a  legal  tender  in  payment  of  all  debts,  public  and 
private,  within  the  United  States,"  except  for  duties  on  imports 
and  interest  on  the  public  debt.    12  Stat.,  345,  533,  709. 

The  provisions  of  the  earlier  acts  of  Congress,  so  far  as  it  is 
necessary,  for  the  understanding  of  the  recent  statutes,  to  quote 
them,  are  re-enacted  in  the  following  provisions  of  the  Revised* 
Statutes: — 

"Sec.  3579.  When  any  United  States  notes  are  returned  to  the 
Treasury,  they  may  be  reissued,  from  time  to  time,  as  the  exigencies 
of  the  public  interest  may  require. 

"Sec.  3580.  When  any  United  States  notes  returned  to  the 
Treasury  are  so  mutilated  or  otherwise  injured  as  to  be  unfit  for 
use,  the  Secretary  of  the  Treasury  is  authorized  to  replace  the 
same  with  others  of  the  same  character  and  amounts. 

"Sec.  3581.  Mutilated  United  States  notes,  when  replaced  ac- 
cording to  law,  and  all  other  notes  which  by  law  are  required  to  be 
taken  up  and  not  reissued,  when  taken  up  shall  be  destroyed  in 
such  manner  and  under  such  regulations  as  the  Secretary  of  the 
Treasury  may  prescribe. 

"Sec.  3582.  The  authority  given  to  the  Secretary  of  the  Treas- 
ury to  make  any  reduction  of  the  currency,  by  retiring  and  can- 
celling United  States  notes,  is  suspended." 

"Sec.  3588.  United  States  notes  shall  be  lawful  money  and  a 
legal  tender  in  payment  of  all  debts,  public  and  private,  within 
the  United  States,  except  for  duties  on  imports  and  interest  on 
the  public  debt." 

The  act  of  January  14th,  1875,  ch.  15,  "to  provide  for  the  re- 
sumption of  specie  payments,"  enacted  that  on  and  after  January 
1st,  1879,  "the  Secretary  of  the  Treasury  shall  redeem  in  coin  the 
United  States  legal  tender  notes  then  outstanding,  on  their  pre- 
sentation for  redemption  at  the  office  of  the  Assistant  Treasurer 
of  the  United  States  in  the  City  of  New  York,  in  sums  of  not 
less  than  fifty  dollars,"  and  authorized  him  to  use  for  that  pur- 
pose any  surplus  revenues  in  the  Treasury  and  the  proceeds  of 
the  sales  of  certain  bonds  of  the  United  States.    18  Stat.,  296. 


leO  CASES   ON  CONSTITUTIONAL   LAW. 

The  act  of  May  31st,  1878,  ch.  146,  under  which  the  notes  in 
question  were  reissued,  is  entitled  "An  act  to  forbid  the  further 
retirement  of  United  States  legal  tender  notes,"  and  enacts  as 
follows: — 

"From  and  after  the  passage  of  this  act  it  shall  not  be  lawful 
for  the  Secretary  of  the  Treasury  or  other  officer  under  him  to 
cancel  or  retire  any  more  of  the  United  States  legal  tender  notes. 
And  when  any  of  said  notes  may  be  redeemed  or  be  received  into 
the  Treasury  under  any  law  from  any  source  whatever  and  shall 
belong  to  the  United  States,  they  shall  not  be  retired,  cancelled,' 
or  destroyed,  but  they  shall  be  reissued  and  paid  out  again  and 
kept  in  circulation:  Provided,  That  nothing  herein  shall  prohibit 
the  cancellation  and  destruction  of  mutilated  notes  and  the  issue 
of  other  notes  of  like  denomination  in  their  stead,  as  now  provided 
by  law.  All  acts  and  parts  of  acts  in  conflict  herewith  are  hereby 
repealed."    20  Stat.,  87. 

The  manifest  intention  of  this  act  is  that  the  notes  which  it 
directs,  after  having  been  redeemed,  to  be  reissued  and  kept  in 
circulation,  shall  retain  their  original  quality  of  being  a  legal 
tender. 

The  single  question,  therefore,  to  be  considered,  and  upon  the 
answer  to  which  the  judgment  to  be  rendered  between  these  par- 
ties depends,  is  whether  notes  of  the  United  States,  issued  in  time 
of  war,  under  acts  of  Congress  declaring  them  to  be  a  legal 
tender  in  payment  of  private  debts,  and  afterwards  in  time  of 
peace  redeemed  and  paid  in  gold  coin  at  the  Treasury,  and  then 
reissued  under  the  act  of  1878,  can,  under  the  Constitution  of 
the  United  States,  be  a  legal  tender  in  payment  of  such  debts. 

Upon  full  consideration  of  the  case,  the  court  is  unanimously 
of  opinion  that  it  cannot  be  distinguished  in  principle  from  the 
cases  heretofore  determined,  reported  under  the  names  of  the 
Legal  Tender  Cases,  12  Wall.,  457;  Dooley  v.  Smith,  13  Wall.,  604; 
Eailroad  Company  v.  Johnson,  15  Wall.,  195;  and  Maryland  v. 
Railroad  Company,  22  Wall.,  105;  and  all  the  judges,  except  Mr. 
Justice  Field,  who  adheres  to  the  views  expressed  in  his  dissent- 
ing opinions  in  those  cases,  are  of  opinion  that  they  were  rightly 
decided. 

The  elaborate  printed  briefs  submitted  by  counsel  in  this  case, 
and  the  opinions  delivered  in  the  Legal  Tender  Cases,  and  in  the 
earlier  case  of  Hepburn  v,  Griswold,  8  Wall.,  603,  which  those 
cases  overruled,  forcibly  present  the  arguments  on  either  side  of 
the  question  of  the  power  of  Congress  to  make  the  notes  of  the 
United  States  a  legal  tender  in  payment  of  private  debts.     With-. 


JUILLIARD  V.  GREENMAN.  161 

out  undertaking  to  deal  with  all  those  arguments,  the  court  has 
thought  it  lit  that  the  grounds  of  its  judgment  in  the  ease  at  bar 
should  be  fully  stated. 

No  question  of  the  scope  and  extent  of  the  implied  powers  of 
Congress  under  the  Constitution  can  be  satisfactorily  discussed 
without  repeating  much  of  the  reasoning  of  Chief  Justice  Marshall 
in  the  great  judgment  in  McCulloch  v.  Maryland,  4  Wheat.,  316, 
by  which  the  power  of  Congress  to  incorporate  a  bank  was  demon- 
strated and  affirmed,  notwithstanding  the  Constitution  does  not 
enumerate,  among  the  powers  granted,  that  of  establishing  a  bank 
or  creating  a  corporation. 

The  people  of  the  United  States  by  the  Constitution  established 
a  national  government,  with  sovereign  powers,  legislative,  execu- 
tive, and  judicial.  "The  government  of  the  Union,"  said  Chief 
Justice  Marshall,  "though  limited  in  its  powers,  is  supreme  within 
its  sphere  of  action;"  "and  its  laws,  when  made  in  pursuance  of 
the  Constitution,  form  the  supreme  law  of  the  land."  "Among  j 
the  enumerated  powers  of  government,  we  find  the  great  powers 
to  lay  and  collect  taxes;  to  borrow  money;  to  regulate  commerce; 
to  declare  and  conduct  a  war;  and  to  raise  and  support  armies 
and  navies.  The  sword  and  the  purse,  all  the  external  relations, 
and  no  inconsiderable  portion  of  the  industry  of  the  nation, 
are  intrusted  to  its  government."      4  WTieat.,  405,  406,  407. 

A  constitution,  establishing  a  frame  of  government,  declaring 
fundamental  principles,  and  creating  a  national,  sovereignty,  an 
intended  to  endure  for  ages  and  to  be  adapted  to  the  variou 
crises  of  human  affairs,  is  not  to  be  interpreted  with  the  strictnesi 
of  a  private  contract.  The  Constitution  of  the  United  States,  b 
apt  words  of  designation  or  general  description,  marks  tjie  out- 
lines of  the  powers  granted  to  the  national  legislature;  but  it 
does  not  undertake,  with  the  precision  and  detail  of  a  code  of 
laws,  to  enumerate  the  subdivisions  of  those  powers,  or  to  specify 
all  the  means  by  which  they  may  be  carried  into  execution.  Chief 
Justice  Marshall,  after  dwelling  upon  this  view,  as  required  by 
the  very  nature  of  the  Constitution,  by  the  language  in  which  it 
is  framed,  by  the  limitations  upon  the  general  powers  of  Con- 
gress introduced  in  the  ninth  section  of  the  first  article,  and  by 
the  omission  to  use  any  restrictive  term  which  might  prevent  its 
receiving  a  fair  and  just  interpretation,  added  these  emphatic 
words:  "In  considering  this  question,  then,  we  must  never  forget 
that  it  is  a  constitution  we  are  expounding."  4  Wheat.,  107.  See 
also  page  415. 

The  breadth  and  comprehensiveness  of  the  words  of  the  Con- 
11 


162  CASES   ON   CONSTITUTIONAL   LAW. 

stitution  are  nowhere  more  strikingly  exhibited  than  in  regard' 
to  the  powers  over  the  subjects  of  revenue,  finance,  and  currency, 
of  which  there  is  no  other  express  grant  than  may  be  found  in 
these  few  brief  clauses: — 

"The  Congress  shall  have  power 

"To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts  and  provide  for  the  common  defense  and  general  wel- 
fare of  the  United  States;  but  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States; 

"To  borrow  money  on  the  credit  of  the  United  S'tates; 

"To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes; 

"To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures." 

The  section  which  contains  the  grant  of  these  and  other  prin- 
cipal legislative  powers  concludes  by  declaring  that  the  Congress 
shall  have  power 

"To  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,  and  all  other  powers 
A^ested  by  this  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof." 

By  the  settled  construction  and  the  only  reasonable  interpreta- 
tion of  this  clause,  the  words  "necessary  and  proper"  are  not 
limited  to  such  measures  as  are  absolutely  and  indispensably  nec- 
essary, without  which  the  powers  granted  must  fail  of  execu- 
tion; but  they  include  all  appropriate  means  which  are  conducive 
or  adapted  to  the  end  to  be  accomplished,  and  which  in  the  judg- 
ment of  Congrer:  will  most  advantageously  effect  it. 

That  clause  of  the  Constitution  which  declares  that  "the  Con- 
gress shall  have  the  power  to  lay  and  collect  taxes,  duties,  imposts, 
and  excises,  to  pay  the  debts  and  provide  for  the  common  defense 
and  general  welfare  of  the  United  States,"  either  embodies  a  grant 
of  power  to  pay  the  debts  of  the  United  States,  or  presupposes  and 
assumes  that  power  as  inherent  in  the  United  States  as  a  sovereign 
government.  But,  in  whichever  aspect  it  be  considered,  neither 
this  nor  any  other  clause  of  the  Constitution  makes  any  mention  of 
priority  or  preference  of  the  United  States  as  a  creditor  over  other 
creditors  of  an  individual  debtor.  Yet  this  court,  in  the  early 
case  of  United  States  v.  Fisher,  2  Cranch,  358,  held  that,  under 
the  power  to  pay  the  debts  of  the  United  States,  Congress  had 
the  power  to  enact  that  debts  due  to  the  United  States  should 
have  that  priority  of  payment  out  of  the  estate  of  an  insolvent 
debtor,  which  the  law  of  England  gave  to  debts  due  the  Crown. 


JUILLIARD  V.  GREENMAN.  163 

In  delivering  judgment  in  that  case.  Chief  Justice  Marshall 
expounded  the  clause  giving  Congress  power  to  make  all  neces- 
sary and  proper  laws,  as  follows:  "In  construing  this  clause,  it 
would  be  incorrect,  and  would  produce  endless  difficulties,  if 
the  opinion  should  be  maintained  that  no  law  was  authorized 
which  was  not  indispensably  necessary  to  give  effect  to  a  specified 
power.  Where  various  systems  might  be  adopted  for  that  pur- 
pose, it  might  be  said  with  respect  to  each,  that  it  was  not  nec- 
essary, because  the  end  might  be  obtained  by  other  means.  Con- 
gress must  possess  the  choice  of  means,  and  must  be  empowered 
to  use  any  means  which  are  in  fact  conducive  to  the  exercise  of 
a  power  granted  by  the  Constitution.  The  government  is  to  pay 
the  debt  of  the  Union,  and  must  be  authorized  to  use  the  means 
which  appear  to  itself  the  most  eligible  to  effect  that  object."  2^ 
Cranch,  396. 

In  McCulloch  v.  Maryland,  he  more  fully  developed  the  same 
view,  concluding  thus:  "We  admit,  as  all  must  admit,  that  the 
powers  of  the  government  are  limited,  and  that  its  limits  are  not 
to  be  transcended.  But  we  think  the  sound  construction  of  the 
Constitution  must  allow  to  the  national  legislature  that  discre- 
tion, with  respect  to  the  means  by  which  the  powers  it  con- 
fers are  to  be  carried  into  execution,  which  will  enable  that  body 
to  perform  the  high  duties  assigned  to  it,  in  the  manner  most 
beneficial  to  the  people.  Let  the  end  be  legitimate,  let  it  be  within 
the  scope  of  the  Constitution,  and  all  means  which  are  appro- 
priate, which  are  plainly  adapted  to  that  end,  which  are  not  pro- 
hibited, but  consist  with  the  letter  and  spirit  of  the  Constitution, 
are  constitutional."    4  Wheat.,  421, 

The  rule  of  interpretation  thus  laid  down  has  been  constantly 
adhered  to  and  acted  on  by  this  court,  and  was  accepted  as  express- 
ing the  true  test  by  all  the  judges  who  took  part  in  the  former 
discussions  of  the  power  of  Congress  to  make  the  treasury  notes 
of  the  United  States  a  legal  tender  in  payment  of  private  debts. 

The  other  judgments  delivered  by  Chief  Justice  Marshall  con- 
tain nothing  adverse  to  the  power  of  Congress  to  issue  legal  tender 
notes. 

By  the  Articles  of  Confederation  of  1777,  the  United  States  in 
Congress  assembled  were  authorized  "to  borrow  money  or  emit 
bills  on  the  credit  of  the  United  States;"  but  it  was  declared  that 
"each  State  retains  its  sovereignty,  freedom,  and  independence,  and 
every  power,  jurisdiction,  and  right  which  is  not  by  this  confed- 
eration expressly  delegated  to  the  United  States  in  Congress  assem- 
bled."   Art.  2;  art.  9,  §  5;  1  Stat.,  4,  7.    Yet,  upon  the  question 


164  CASES  ON   CONSTITUTIONAL  LAW. 

whether,  under  those  articles,  Congress,  by  virtue  of  the  power  to 
emit  bills  on  the  credit  of  the  United  States,  had  the  power  to  make 
bills  so  emitted  a  legal  tender.  Chief  Justice  Marshall  spoke  very 
guardedly,  saying:  "Congress  emitted  bills  of  credit  to  a  large 
amount,  and  did  not,  perhaps  could  not,  make  them  a  legal  tender. 
This  power  resided  in  the  States."  Craig  v.  Missouri,  4  Pet.,  410, 
435.  But  in  the  Constitution,  as  he  had  before  observed  in  Mc- 
Culloch  V.  Maryland,  "there  is  no  phrase  which,  like  the  Articles 
of  Confederation,  excludes  incidental  or  implied  powers;  and 
which  requires  that  everything  granted  shall  be  expressly  and 
minutely  described.  Even  the  Tenth  Amendment,  which  was 
framed  for  the  purpose  of  quieting  the  excessive  jealousies  which 
had  been  excited,  omits  the  word  'expressly,'  and  declares  only 
that  the  powers  'not  delegated  to  the  United  States,  nor  prohib- 
ited to  the  States,  are  reserved  to  the  States  or  to  the  people;' 
thus  leaving  the  question,  whether  the  particular  power  which 
may  become  the  subject  of  contest  has  been  delegated  to  the  one 
government  or  prohibited  to  the  other,  to  depend  on  a  fair  con- 
struction of  the  whole  instrument.  The  men  who  drew  and  adopted 
this  amendment  had  experienced  the  embarrassments  resulting 
from  the  insertion  of  this  word  in  the  Articles  of  Confederation, 
and  probably  omitted  it  to  avoid  those  embarrassments."  4  Wheat., 
406,  407. 

The  sentence  sometimes  quoted  from  his  opinion  in  Sturges 
V.  Crowninshield  had  exclusive  relation  to  the  restrictions  im- 
posed by  the  Constitution  on  the  powers  of  the  States,  and  espe- 
cial reference  to  the  effect  of  the  clause  prohibiting  the  States 
from  passing  laws  impairing  the  obligation  of  contracts,  as  will 
clearly  appear  by  quoting  the  whole  paragraph:  "Was  this  gen- 
eral prohibition  intended  to  prevent  paper  money?  We  are  not 
allowed  to  say  so,  because  it  is  expressly  provided  that  no  State 
shall  'emit  bills  of  credit;'  neither  could  these  words  be  intended 
to  restrain  the  States  from  enabling  debtors  to  discharge  their 
debts  by  the  tender  of  property  of  no  real  value  to  the  creditor, 
because  for  that  subject  also  particular  provision  is  made.  Noth- 
ing but  gold  and  silver  coin  can  be  made  a  tender  in  payment  of 
debts."     4  Wheat.,  122,  204. 

Such  reports  as  have  come  down  to  us  of  the  debates  in  the  Con- 
vention that  framed  the  Constitution  afford  no  proof  of  any  gen- 
eral concurrence  of  opinion  upon  the  subject  before  us.  The 
adoption  of  the  motion  to  strike  out  the  words  "and  emit  bills" 
from  the  clause  "to  borrow  money  and  emit  bills  on  the  credit  of 
the  United  States"  is  quite  inconclusive.    The  philippic  delivered 


JUILLIARD  V.   GREENMAN.  165 

before  the  Assembly  of  Maryland  by  Mr.  Martin,  one  of  the  dele- 
gates from  that  State,  who  voted  against  the  motion,  and  who  de- 
clined to  sign  the  Constitution,  can  hardly  be  accepted  as  satis- 
factory evidence  of  the  reasons  or  the  motives  of  the  majority 
of  the  Convention.  See  1  Elliot's  Debastes,  345,  370,  376.  Some 
of  the  members  of  the  Convention,  indeed,  as  appears  by  Mr. 
Madison's  minutes  of  the  debates,  expressed  the  strongest  opposi- 
tion to  paper  money.  And  Mr.  Madison  has  disclosed  the  grounds 
of  his  own  action,  by  recording  that  "this  vote  in  the  affirmative 
by  Virginia  was  occasioned  by  the  acquiescence '  of  Mr.  Madison, 
who  became  satisfied  that  striking  out  the  words  would  not  dis- 
able the  government  from  the  use  of  public  notes,  so  far  as  they 
could  be  safe  and  proper;  and  would  only  cut  off  the  pretext  for 
a  paper  currency,  and  particularly  for  making  the  bills  a  tender, 
either  for  public  or  private  debts."  But  he  has  not  explained 
why  he  thought  that  striking  out  the  words  "and  emit  bills"  would 
leave  the  power  to  emit  bills,  and  deny  the  power  to  make  them 
a  tender  in  payment  of  debts.  And  it  cannot  be  known  how 
many  of  the  other  delegates,  by  whose  vote  the  motion  was  adopted, 
intended  neither  to  proclaim  nor  to  deny  the  power  to  emit  paper 
money,  and  were  influenced  by  the  argument  of  Mr.  Gorham,  who 
"was  for  striking  out,  without  inserting  any  prohibition,"  and 
who  said:  "If  the  words  stand,  they  may  suggest  and  lead  to  the 
emission."  "The  power,  so  far  as  it  will  be  necessary  or  safe,  will 
be  involved  in  that  of  borrowing."  5  Elliot's  Debates,  434,  435, 
and  note.  And  after  the  first  clause  of  the  tenth  section  of  the 
first  article  had  been  reported  in  the  form  in  which  it  now 
stands,  forbidding  the  States  to  make  anything  but  gold  or  silver 
coin  a  tender  in  payment  of  debts,  or  to  pass  any  law  impairing 
the  obligation  of  contracts,  when  Mr.  Gerry,  as  reported  by  Mr. 
Madison,  "entered  into  observations  inculcating  the  importance 
of  public  faith,  and  the  propriety  of  the  restraint  put  on  the  States 
from  impairing  the  obligation  of  contracts,  alleging  that  Congress 
ought  to  be  laid  under  the  like  prohibitions,"  and  made  a  motion 
to  that  effect,  he  was  not  seconded.  lb.,  546.  As  an  illustration 
of  the  danger  of  giving  too  much  weight,  upon  such  a  question, 
to  the  debates  and  the  votes  in  the  Convention,  it  may  also  be 
observed  that  propositions  to  authorize  Congress  to  grant  charters 
of  incorporation  for  national  objects  were  strongly  opposed,  espe- 
cially as  regarded  banks,  and  defeated.  lb.,  440,  543,  544.  The 
power  of  Congress  to  emit  bills  of  credit,  as  well  as  to  incorporate 
national  banks,  is  now  clearly  established  by  decisions  to  which 
we  shall  presently  refer. 


166  CASES  ON   CONSTITUTIONAL   LAW. 

The  words  "to  borrow  money,"  as  used  in  the  Constitution,  to 
designate  a  power  vested  in  the  national  government,  for  the  safety 
and  welfare  of  the  whole  people,  are  not  to  receive  that  limited 
and  restricted  interpretation  and  meaning  which  they  would  have 
in  a  penal  statute,  or  in  an  authority  conferred,  by  law  or  by  con- 
tract, upon  trustees  or  agents  for  private  purposes. 

The  power  "to  borrow  money  on  the  credit  of  the  United  States" 
is  the  power  to  raise  money  for  the  public  use  on  a  pledge  of  the 
public  credit,  and  may  be  exercised  to  meet  either  present  or  an- 
ticipated expenses  and  liabilities  of  the  government.  It  includes 
the  power  to  issue,  in  return  for  the  money  borrowed,  the  obliga- 
tions of  the  United  States  in  any  appropriate  form,  of  stock,  bonds, 
bills,  or  notes;  and  in  whatever  form  they  are  issued,  being  instru- 
ments of  the  national  government,  they  are  exempt  from  taxa- 
tion by  the  governments  of  the  several  States.  Weston  v.  Charles- 
ton City  Council,  2  Pet.,  449;  Banks  v.  Mayor,  7  Wall.,  16;  Bank 
V.  Supervisors,  7  Wall.,  26.  Congress  has  authority  to  issue  these 
obligations  in  a  form  adapted  to  circulation  from  hand  to  hand 
in  the  ordinary  transactions  of  commerce  and  business.  In  order 
to  promote  and  facilitate  such  circulation,  to  adapt  them  to  use 
as  currency,  and  to  make  them  more  current  in  the  market,  it  may 
provide  for  their  redemption  in  coin  or  bonds,  and  may  make 
them  receivable  in  payment  of  debts  to  the  government.  So  much 
is  settled  beyond  doubt,  and  was  asserted  or  distinctly  admitted 
by  the  judges  who  dissented  from  the  decision  in  the  Legal  Tender 
Cases,  as  well  as  by  those  who  concurred  in  that  decision.  Veazie 
Bank  v.  Fenno,  8  Wall.,  533,  548;  Hepburn  v.  Griswold,  8  Wall., 
616,  636;  Legal  Tender  Cases,  12  Wall.,  543,  544,  560,  582,  610, 
613,  637. 

It  is  equally  well  settled  that  Congress  has  the  power  to  incor- 
porate national  banks,  with  the  capacity,  for  their  own  profit  as 
well  as  for  the  use  of  the  government  in  its  money  transactions,  of 
issuing  bills  which  under  ordinary  circumstances  pass  from  hand 
to  hand  as  money  at  their  nominal  value,  and  which,  when  so 
current,  the  law  has  always  recognized  as  a  good  tender  in  pay- 
ment of  money  debts,  unless  specifically  objected  to  at  the  time  of 
the  tender.  United  States  Bank  v.  Bank  of  Georgia,  10  Wheat., 
333,  347;  Ward  v.  Smith,  7  Wall.,  447,  451.  The  power  of  Con- 
gress to  charter  a  bank  was  maintained  in  McCulloch  v.  Maryland, 
4  Wheat.,  316,  and  in  Osbom  v.  United  States  Bank,  9  Wheat., 
738,  chiefly  upon  the  ground  that  it  was  an  appropriate  means 
for  carrying  on  the  money  transactions  of  the  government.  But 
Chief  Justice  Marshall  said;    "The  currency  which  it  circulates. 


JUILLIARD  V.  GREENMAN.  167 

by  means  of  its  trade  with  individuals,  is  believed  to  make  it  a 
more  fit  instrument  for  the  purposes  of  government  than  it  could 
otherwise  be;  and  if  this  be  true,  the  capacity  to  carry  on  this 
trade  is  a  faculty  indispensable  to  the  character  and  objects  of  the 
institution."  9  Wheat.,  864.  And  Mr.  Justice  Johnson,  who 
concurred  with  the  rest  of  the  court  in  upholding  the  power  to 
incorporate  a  bank,  gave  the  further  reason  that  it  tended  to  give 
effect  to  "that  power  over  the  currency  of  the  country,  which  the 
framers  of  the  Constitution  evidently  intended  to  give  to  Congress 
alone."    lb.,  873. 

The  constitutional  authority  of  Congress  to  provide  a  currency 
for  the  whole  country  is  now  firmly  established.  In  Veazie  Bank 
v.  Fenno,  8  Wall.,  533,  548,  Chief  Justice  Chase,  in  delivering  the 
opinion  of  the  court,  said:  "It  cannot  be  doubted  that  under  the 
Constitution  the  power  to  provide  a  circulation  of  coin  is  given  to 
Congress.  And  it  is  settled  by  the  uniform  practice  of  the  govern- 
ment, and  by  repeated  decisions,  that  Congress  may  constitutionally 
authorize  the  emission  of  bills  of  credit."  Congress,  having  under- 
taken to  supply  a  national  currency,  consisting  of  coin,  of  treasury 
notes  of  the  United  States,  and  ot  the  bills  of  national  banks,  is 
authorized  to  impose  on  all  State  banks,  or  national  banks,  or  pri- 
vate bankers,  paying  out  the  notes  of  individuals  or  of  State  banks, 
a  tax  of  ten  per  cent,  upon  the  amount  of  such  notes  so  paid  out. 
Veazie  Bank  v.  Fenno,  above  cited;  National  Bank  v.  United 
States,  101  U.  S.,  1.  The  reason  for  this  conclusion  was  stated  by 
Chief  Justice  Chase,  and  repeated  by  the  present  Chief  Justice,  in 
these  words:  "Having  thus,  in  the  exercise  of  undisputed  consti- 
tutional powers,  undertaken  to  provide  a  currency  for  the  whole 
country,  it  cannot  be  questioned  that  Congress  may,  constitution- 
ally, secure  the  benefit  of  it  to  the  people  by  appropriate  legisla- 
tion. To  this  end.  Congress  has  denied  the  quality  of  legal  tender 
to  foreign  coins,  and  has  provided  by  law  against  the  imposition  of 
counterfeit  and  base  coin  on  the  community.  To  the  same  end. 
Congress  may  restrain,  by  suitable  enactments,  the  circulation  as 
money  of  any  notes  not  issued  under  its  own  authority.  Without 
this  power,  indeed,  its  attempts  to  secure  a  sound  and  uniform 
currency  for  the  country  must  be  futile."  8  Wall.,  549;  101  U.  S.,  6. 

By  the  Constitution  of  the  United  States,  the  several  States 
are  prohibited  from  coining  money,  emitting  bills  of  credit,  or 
making  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts.  But  no  intention  can  be  inferred  from  this  to  deny  to 
Congress  either  of  these  powers.  Most  of  the  powers  granted  to 
Congress  are  described  in  the  eighth  section  of  the  first  article;  the 


168  CASES  ON   CONSTITUTIONAL  LAW. 

limitations  intended  to  be  set  to  its  powers,  so  as  to  exclude  certain 
things  which  might  otherwise  be  taken  to  be  included  in  the  gen- 
eral grant,  are  defined  in  the  ninth  section;  the  tenth  section  is 
addressed  to  the  States  only.  This  section  prohibits  the  States 
from  doing  some  things  which  the  United  States  are  expressly  pro- 
hibited from  doing,  as  well  as  from  doing  some  things  which  the 
United  States  are  expressly  authorized  to  do,  and  from  doing  some 
things  which  are  neither  expressly  granted  nor  expressly  denied 
to  the  United  States.  Congress  and  the  States  equally  are  express- 
ly prohibited  from  passing  any  bill  of  attainder  or  ex  post  facto 
law,  or  granting  any  title  of  nobility.  The  States  are  forbidden, 
while  the  President  and  Senate  are  expressly  authorized,  to  make 
treaties.  The  States  are  forbidden,  but  Congress  is  expressly  au- 
thorized to  coin  money.  The  States  are  prohibited  from  emitting 
bills  of  credit;  but  Congress,  which  is  neither  expressly  author- 
ized nor  expressly  forbidden  to  do  so,  has,  as  we  have  already 
seen,  been  held  to  have  the  power  of  emitting  bills  of  credit,  and 
of  making  every  provision  for  their  circulation  as  currency,  short 
of  giving  them  the  quality  of  legal  tender  for  private  debts — 
even  by  those  who  have  denied  its  authority  to  give  them  this 
quality. 

,/"  It  appears  to  us  to  follow,  as  a  logical  and  necessary  conse- 
quence, that  Congress  has  the  power  to  issue  the  obligations  of  the 
United  States  in  such  form,  and  to  impress  upon  them  such  quali- 
ties as  currency  for  the  purchase  of  merchandise  and  the  payment 
of  debts,  as  accord  with  the  usage  of  sovereign  governments.  The 
power,  as  incident  to  the  power  of  borrowing  money  and  issuing 
bills  or  notes  of  the  government  for  money  borrowed,  of  impress- 
ing upon  those  bills  or  notes  the  quality  of  being  a  legal  tender 
for  the  payment  of  private  debts,  was  a  power  universally  under- 
stood to  belong  to  sovereignty,  in  Europe  and  America,  at  the 
time  of  the  framing  and  adoption  of  the  Constitution  of  the  United 
States.  The  governments  of  Europe,  acting  through  the  monarch 
or  the  legislature,  according  to  the  distribution  of  powers  under 
their  respective  constitutions,  had  and  have  as  sovereign  a  power 
of  issuing  paper  money  as  of  stamping  coin.  This  power  has  been 
distinctly  recognized  in  an  important  modern  case,  ably  argued  and 
fully  considered,  in  which  the  Emperor  of  Austria,  as  King  of  Hun- 
gary, obtained  from  the  English  Court  of  Chancery  an  injunction 
against  the  issue  in  England,  without  his  license,  of  notes  pur- 
porting to  be  public  paper  money  of  Hungary.  Austria  v.  Day, 
2  Gif!.,  628,  and  3  D.  F.  &  J.,  217.  The  power  of  issuing  bills 
oi  credit,  and  making  them,  at  the  discretion  of  the  legislature,  a 


JUILLIARD  V.   GREENMAN.  169 

tender  in  payment  of  private  debts,  had  long  been  exercised  in  this 
country  by  the  several  Colonies  and  States;  and  during  the  Eevo- 
lutionary  War  the  States,  upon  the  recommendation  of  the  Con- 
gress of  the  Confederation,  had  made  the  bills  issued  by  Congress 
a  legal  tender.  See  Craig  v.  Missouri,  4  Pet.,  435,  453;  Briscoe  v. 
Bank  of  Kentucky,  11  Pet.,  257,  313,  334-336;  Legal  Tender 
Cases,  13  Wall.,  557,  558,  622;  Phillips  on  American  Paper  Cur- 
rency, passim.  The  exercise  of  this  power  not  being  prohibited  to 
Congress  by  the  Constitution,  it  is  included  in  the  power  expressly 
granted  to  borrow  money  on  the  credit  of  the  United  States. 

This  position  is  fortified  by  the  fact  that  Congress  is  vested  with 
the  exclusive  exercise  of  the  analogous  power  of  coining  money 
and  regulating  the  value  of  domestic  and  foreign  coin,  and  also 
with  the  paramount  power  of  regulating  foreign  and  interstate 
commerce.  Under  the  power  to  borrow  money  on  the  credit  of  the 
United  States,  and  to  issue  circulating  notes  for  the  money  bor- 
rowed, its  power  to  define  the  quality  and  force  of  those  notes  as 
currency  is  as  broad  as  the  like  power  over  a  metallic  currency 
under  the  power  to  coin  money  and  to  regulate  the  value  thereof. 
Under  the  two  powers,  taken  together,  Congress  is  authorized  to 
establish  a  national  currency,  either  in  coin  or  in  paper,  and  to 
make  that  currency  lawful  money  for  all  purposes,  as  regards  the 
national  government  or  private  individuals. 

The  power  of  making  the  notes  of  the  United  States  a  legal 
tender  in  payment  of  private  debts,  being  included  in  the  power 
to  borrow  money  and  to  provide  a  national  currency,  is  not  defeated 
or  restricted  by  the  fact  that  its  exercise  may  affect  the  value  of 
private  contracts.  If,  upon  a  just  and  fair  interpretation  of  the 
whole  Constitution,  a  particular  power  or  authority  appears  to  be 
vested  in  Congress,  it  is  no  constitutional  objection  to  its  existence, 
or  to  its  exercise,  that  the  property  or  the  contracts  of  individuals 
may  be  incidentally  affected.  The  decisions  of  this  court,  already 
cited,  afford  several  examples  of  this. 

Upon  the  issue  of  stock,  bonds,  bills,  or  notes  of  the  United 
States,  the  States  are  deprived  of  their  power  of  taxation  to  the 
extent  of  the  property  invested  by  individuals  in  such  obligations, 
and  the  burden  of  State  taxation  upon  other  private  property  is 
correspondingly  increased.  The  ten  per  cent,  tax,  imposed  by 
Congress  on  notes  of  State  banks  and  of  private  bankers,  not  only 
lessens  the  value  of  such  notes,  but  tends  to  drive  them,  and  all 
State  banks  of  issue,  out  of  existence.  The  priority  given  to  debts 
due  to  the  United  States  over  the  private  debts  of  an  insolvent 


170  CASES  ON   CONSTITUTIONAL   LAW. 

debtor  diminishes  the  value  of  these  debts,  and  the  amount  which 
their  holders  may  receive  out  of  the  debtor's  estate. 

So,  under  the  power  to  coin  money  and  to  regulate  its  value, 
Congress  may  (as  it  did  with  regard  to  gold  by  the  act  of  June 
28th,  1834,  c.  95,  and  with  regard  to  silver  by  the  act  of  February 
28th,  1878,  c.  20),  issue  coins  of  the  same  denominations  as  those 
already  current  by  law,  but  of  less  intrinsic  value  than  those,  by 
reason  of  containing  a  less  weight  of  the  precious  metals,  and 
thereby  enable  debtors  to  discharge  their  debts  by  the  payment  of 
coins  of  the  less  real  value.  A  contract  to  pay  a  certain  sum  in 
money,  without  any  stipulation  as  to  the  kind  of  money  in  which 
it  shall  be  paid,  may  always  be  satisfied  by  payment  of  that  sum  in 
any  currency  which  is  lawful  money  at  the  place  and  time  at  which 
jDayment  is  to  be  made.  1  Hale  P.  C,  192-19-i;  Bac.  Ab.  Tender, 
B.  2;  Pothier,  Contract  of  Sale,  No.  416;  Pardessus,  Droit  Com- 
mercial, Nos.  204,  205;  Searight  v.  Calbraith,  4  Dall.,  324.  As 
observed  by  Mr.  Justice  Strong,  in  delivering  the  opinion  of  the 
court  in  the  Legal  Tender  Cases,  "Every  contract  for  the  payment 
of  money,  simply,  is  necessarily  subject  to  the  constitutional  power 
of  the  government  over  the  currency,  whatever  that  power  may  be, 
and  the  obligation  of  the  parties  is,  therefore,  assumed  with  refer- 
ence to  that  power."  12  Wall.,  549. 

Congress,  as  the  legislature  of  a  sovereign  nation,  being  ex- 
pressly empowered  by  the  Constitution,  "to  lay  and  collect  taxes, 
to  pay  the  debts  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States,"  and  "to  borrow  money  on  the  credit 
of  the  United  States,"  and  "to  coin  money  and  regulate  the  value 
thereof  and  of  foreign  coin;"  and  being  clearly  authorized,  as  in- 
cidental to  the  exercise  of  those  great  powers,  to  emit  bills  of  credit, 
to  charter  national  banks,  and  to  provide  a  national  currency  for 
the  whole  people,  in  the  form  of  coin,  treasury  notes,  and  national 
/bank  bills;  and  the  power  to  make  the  notes  of  the  government  a 
/legal  tender  in  payment  of  private  debts  being  one  of  the  powers 
I  belonging  to  sovereignty  in  other  civilized  nations,  and  not  ex- 
1  pressly  withheld  from  Congress  by  the  Constitution;  we  are  irre- 
sistibly impelled  to  the  conclusion  that  the  impressing  upon  the 
treasury  notes  of  the  United  States  the  quality  of  being  a  legal 
tender  in  payment  of  private  debts  is  an  appropriate  means,  con- 
ducive and  plainly  adapted  to  the  execution  of  the  undoubted 
powers  of  Congress,  consistent  with  the  letter  and  spirit  of  the 
Constitution,  and  therefore,  within  the  meaning  of  that  instru- 
ment, "necessary  and  proper  for  carrying  into  execution  the  pow-. 


JUILLIARD  V.  GREENMAN. 


171 


ers  vested  by  this  Constitution  in  the  government  of  the  United 
States." 

Such  being  our  conclusion  in  matter  of  law,  the  question  wheth- 
er at  any  particular  time,  in  war  or  in  peace,  the  exigency  is  such, 
by  reason  of  unusual  and  pressing  demands  on  the  resources  of 
the  government,  or  of  the  inadequacy  of  the  supply  of  gold  and 
silver  coin  to  furnish  the  currency  needed  for  the  uses  of  the  gov- 
ernment and  of  the  people,  that  it  is,  as  matter  of  fact,  wise  and 
expedient  to  resort  to  this  means,  is  a  political  question,  to  be  de- 
termined by  Congress  when  the  question  of  exigency  arises,  and 
not  a  judicial  question,  to  be  afterwards  passed  upon  by  the  courts. 
To  quote  once  more  from  the  judgment  in  McCulloch  v.  Maryland: 
*' Where  the  law  is  not  prohibited,  and  is  really  calculated  to  effect 
any  one  of  the  objects  intrusted  to  the  government,  to  undertake 
here  to  inquire  into  the  degree  of  its  necessity  would  be  to  pass  the 
line  which  circumscribes  the  judicial  department,  and  to  tread  on 
legislative  ground."    4  Wheat.,  423. 

It  follows  that  the  act  of  May  31st,  1878,  c.  146,  is  constitutional 
and  valid;  and  that  the  Circuit  Court  rightly  held  that  the  tender 
in  treasury  notes,  reissued  and  kept  in  circulation  under  that  act, 
was  a  tender  of  lawful  money  in  payment  of  the  defendant's  debt 
to  the  plaintiff.  Judgment  affirmed. 

[Mb.  Justice  Fiet.d  delivered  a  dissenting  opinion.] 


Note. — See  articles  in  American  Law  Eeview,  IV.,  768,  by  Jus- 
tice 0.  W.  Holmes,  and  in  Harvard  Law  Eeview,  I.,  73,  by  Prof. 
James  B.  Thayer. 


IV.    COMMERCE. 


GIBBONS   V.    OGDEN. 

9  Wheaton,  1.    Decided  1824. 

Ereor  to  the  court  for  the  trial  of  impeachments  and  correction 
of  errors  of  the  State  of  New  York.  Aaron  Ogden  filed  his  bill  in 
the  court  of  chancery  of  that  State,  against  Thomas  Gibbons,  set- 
ting forth  the  several  acts  of  the  legislature  thereof,  enacted  for 
the  purpose  of  securing  to  Robert  R.  Livingston  and  Robert  Fulton 
the  exclusive  navigation  of  all  the  waters  within  the  jurisdiction 
of  that  StatC;,  with  boats  moved  by  fire  or  steam,  for  a  term  of 
years  which  has  not  yet  expired;  and  authorizing  the  chancellor 
to  award  an  injunction,  restraining  any  person  whatever  from 
navigating  those  waters  with  boats  of  that  description.  The  bill 
stated  an  assignment  from  Livingston  and  Fulton  to  one  John  R. 
Livingston,  and  from  him  to  the  complainant,  Ogden,  of  the  right 
to  navigate  the  waters  between  Elizabethtown,  and  other  places 
in  New  Jersey,  and  the  city  of  New  York;  and  that  Gibbons,  the 
defendant  below,  was  in  possession  of  two  steamboats,  called  The 
Stoudinger  and  The  Bellona,  which  were  actually  employed  in 
running  between  New  York  and  Elizabethtown,  in  violation  of  the 
exclusive  privilege  conferred  on  the  complainant,  and  praying  an 
injunction  to  restrain  the  said  Gibbons  from  using  the  said  boats, 
or  any  other  propelled  by  fire  or  steam,  in  navigating  the  waters 
within  the  territory  of  New  York.  The  injunction  having  been 
awarded,  the  answer  of  Gibbons  was  filed,  in  which  he  stated  that 
the  boats  employed  by  him  were  duly  enrolled  and  licensed,  to  be 
employed  in  carrying  on  the  coasting  trade,  under  the  act  of  con- 
gress, passed  the  18th  of  February,  1793,  c.  8  (1  Stats,  at  Large, 
305),  entitled,  "An  act  for  enrolling  and  licensing  ships  and  ves- 
sels to  be  employed  in  the  coasting  trade  and  fisheries,  and  for 
regulating  the  same."  And  the  defendant  insisted  on  his  right, 
in  virtue  of  such  licenses,  to  navigate  the  waters  between  Eliza- 
bethtown and  the  city  of  New  York,  the  said  acts  of  the  legislature 

172 


J 


GIBBONS  V.  OGDEN.  17£ 

of  the  State  of  New  York  to  the  contrary  notwithstanding.  At 
the  hearing,  the  chancellor  perpetuated  the  injunction,  being  of 
the  opinion  that  the  said  acts  were  not  repugnant  to  the  consti- 
tution and  laws  of  the  United  States,  and  were  valid.  This  decree 
was  affirmed  in  the  court  for  the  trial  of  impeachments  and  correc- 
tion of  errors,  which  is  the  highest  court  of  law  and  equity  in  the 
State,  before  which  the  cause  could  be  carried,  and  it  was  there- 
upon brought  to  this  court  by  writ  of  error.     .     .     . 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  and,  after 
stating  the  case,  proceeded  as  follows: — 

The  appellant  contends  that  this  decree  is  erroneous,  because 
the  laws  which  purport  to  give  the  exclusive  privilege  it  sustains 
are  repugnant  to  the  constitution  and  laws  of  the  United  States, 

They  are  said  to  be  repugnant, — 

1.  To  that  clause  in  the  constitution  which  authorizes  congress 
to  regulate  commerce. 

2.  To  that  which  authorizes  congress  to  promote  the  progress 
of  science  and  useful  arts. 

The  State  of  New  York  maintains  the  constitutionality  of  these 
laws;  and  their  legislature,  their  council  of  revision,  and  their 
judges,  have  repeatedly  concurred  in  this  opinion.  It  is  supported 
by  great  names, — by  names  which  have  all  the  titles  to  considera- 
tion that  virtue,  intelligence,  and  office  can  bestow.  No  tribunal 
can  approach  the  decision  of  this  question  without  feeling  a  just 
and  real  respect  for  that  opinion  which  is  sustained  by  such  author- 
ity; but  it  is  the  province  of  this  court,  while  it  respects,  not  to 
bow  to  it  implicitly;  and  the  judges  must  exercise,  in  the  exam- 
ination of  the  subject,  that  understanding  which  Providence  has 
bestowed  upon  them,  with  that  independence  which  the  people  of 
the  United  States  expect  from  this  department  of  the  government. 

As  preliminary  to  the  very  able  discussions  of  the  constitution 
which  we  have  heard  from  the  bar,  and  as  having  some  influence 
on  its  construction,  reference  has  been  made  to  the  political  situa- 
tion of  these  States,  anterior  to  its  formation.  It  has  been  said 
that  they  were  sovereign,  were  completely  independent,  and  were 
connected  with  each  other  only  by  a  league.  This  is  true.  But, 
when  these  allied  sovereigns,  converted  their  league  into  a  govern- 
ment, when  they  converted  their  congress  of  ambassadors,  deputed 
to  deliberate  on  their  common  concerns,  and  to  recommend  meas- 
ures of  general  utility,  into  a  legislature;  empowered  to  enact  laws 
on  the  most  interesting  subjects,  the  whole  character  in  which  the 
States  appear  underwent  a  change,  the  extent  of  which  must  be 


174  CASES  ON   CONSTITUTIONAL   LAW. 

determined  by  a  fair  consideration  of  the  instrument  by  which  that 
change  was  effected. 

This  instrument  contains  an  enumeration  of  powers  expressly 
granted  by  the  people  to  their  government.  It  has  been  said  that 
these  powers  ought  to  be  construed  strictly.  But  why  ought  they 
to  be  so  constructed?  Is  there  one  sentence  in  the  constitution 
which  gives  countenance  to  this  rule?  In  the  last  of  the  enumer- 
ated powers,  that  which  grants,  expressly,  the  means  for  carrying 
all  others  into  execution,  congress  is  authorized  "to  make  all  laws 
which  shall  be  necessary  and  proper"  for  the  purpose.  But  this 
limitation  on  the  means  which  may  be  used,  is  not  extended  to  the 
powers  which  are  conferred;  nor  is  there  one  sentence  in  the  consti- 
tution, which  has  been  pointed  out  by  the  gentlemen  of  the  bar,  or 
which  we  have  been  able  to  discern,  that  prescribes  this  rule.  We 
do  not,  therefore,  think  ourselves  justified  in  adopting  it.  What  do 
gentlemen  mean  by  a  strict  construction?  If  they  contend  only 
against  that  enlarged  construction,  which  would  extend  words  be- 
yond their  natural  and  obvious  import,  we  might  question  the 
application  of  the  term,  but  should  not  controvert  the  principle. 
If  they  contend  for  that  narrow  construction  which,  in  support 
of  some  theory  not  to  be  found  in  the  constitution,  would  deny  to 
the  government  those  powers  which  the  words  of  the  grant,  as 
usually  understood,  import,  and  which  are  consistent  with  the 
general  views  and  objects  of  the  instrument;  for  that  narrow  con- 
struction, which  would  cripple  the  government,  and  render  it  un- 
equal to  the  objects  for  which  it  is  declared  to  be  instituted,  and 
to  which  the  powers  given,  as  fairly  understood,  render  it  com- 
petent; then  we  cannot  perceive  the  propriety  of  this  strict  con- 
struction, nor  adopt  it  as  the  rule  by  which  the  constitution  is  to 
be  expounded.  As  men  whose  intentions  require  no  concealment, 
generally  employ  the  words  which  most  directly  and  aptly  express 
the  ideas  they  intend  to  convey,  the  enlightened  patriots  who 
framed  our  constitution,  and  the  people  who  adopted  it,  must  be 
understood  to  have  employed  words  in  their  natural  sense,  and  to 
have  intended  what  they  have  said.  If,  from  the  imperfection  of 
human  language,  there  should  be  serious  doubts  respecting  the 
extent  of  any  given  power,  it  is  a  well  settled  rule  that  the  objects 
for  which  it  was  given,  especially  when  those  objects  are  ex- 
pressed in  the  instrument  itself,  should  have  great  influence  in 
the  construction.  We  know  of  no  reason  for  excluding  this  rule 
from  the  present  case.  The  grant  does  not  convey  power  which 
might  be  beneficial  to  the  grantor,  if  retained  by  himself,  or 
which  can  enure  solely  to  the  benefit  of  the  grantee;    but  is  an 


f 


GIBBONS  V.  OGDEN.  175 

investment  of  power  for  the  general  advantage,  in  the  hands  of 
agents  selected  for  that  purpose;  which  power  can  never  be  exer- 
cised by  the  people  themselves,  but  must  be  placed  in  the  hands  of 
agents,  or  lie  dormant.  We  know  of  no  rule  for  construing  the 
extent  of  such  powers,  other  than  is  given  by  the  language  of  the 
instrument  which  confers  them,  taken  in  connection  with  the  pur- 
poses for  which  they  were  conferred. 

The  words  are:  "Congress  shall  have  power  to  regulate  com^ 
merce  with  foreign  nations,  and  among  the  several  States,  and  with 
the  Indian  tribes."  The  subject  to  be  regulated  is  commerce; 
and  our  constitution  being,  as  was  aptly  said  at  the  bar,  one  of 
enumeration,  and  not  of  definition,  to  ascertain  the  extent  of  the 
power,  it  becomes  necessary  to  settle  the  meaning  of  the  word. 
The  counsel  for  the  appellee  would  limit  it  to  traffic,  to  buying 
and  selling,  or  the  interchange  of  commodities,  and  do  not  admit 
that  it  comprehends  navigation.  This  would  restrict  a  general 
term,  applicable  to  many  objects,  to  one  of  its  significations. 
Commerce,  undoubtedly,  is  traffic,  but  it  is  something  more, — ^it 
is  intercourse.  It  describes  the  commercial  intercourse  between' 
nations,  and  parts  of  nations,  in  all  its  branches,  and  is  regulated 
by  prescribing  rules  for  carrying  on  that  intercourse.  The  mind 
can  scarcely  conceive  a  system  for  regulating  commerce  between, 
nations  which  shall  exclude  all  laws  concerning  navigation,  which  ' 
shall  be  silent  on  the  admission  of  the  vessels  of  the  one  nation 
into  the  ports  of  the  other,  and  be  confined  to  prescribing  rules  for 
the  conduct  of  individuals,  in  the  actual  employment  of  buying 
and  selling,  or  of  barter. 

If  commerce  does  not  include  navigation,  the  government  of 
the  Union  has  no  direct  power  over  that  subject,  and  can  make  no 
law  prescribing  what  shall  constitute  American  vessels,  or  requir- 
ing that  they  shall  be  navigated  by  American  seamen.  Yet  this 
power  has  been  exercised  from  the  commencement  of  the  govern- 
ment, has  been  exercised  with  the  consent  of  all,  and  has  been 
understood  by  all  to  be  a  commercial  regulation.  All  America 
understands,  and  has  uniformly  understood,  the  word  "commerce" 
to  comprehend  navigation.  It  was  so  understood,  and  must  have 
been  so  understood,  when  the  constitution  was  framed.  The  power 
over  commerce,  including  navigation,  was  one  of  the  primary  ob- 
jects for  which  the  people  of  America  adopted  their  government, 
and  must  have  been  contemplated  in  forming  it.  The  convention 
must  have  used  the  word  in  that  sense,  because  all  have  under- 
stood it  in  that  sense;  and  the  attempt  to  restrict  it  comes  too  late. 

If  the  opinion  that  "commerce,"  as  the  word  is  used  in  the  con- 


176  CASES  ON   CONSTITUTIONAL  LAW. 

stitution,  comprehends  navigation  also,  requires  any  additional 
confirmation,  that  additional  confirmation  is,  we  think,  furnished 
by  the  words  of  the  instrument  itself.  It  is  a  rule  of  construction 
acknowledged  by  all,  that  the  exceptions  from  a  power  mark  its 
extent;  for  it  would  be  absurd,  as  well  as  useless,  to  except  from  a 
granted  power  that  which  was  not  granted, — that  which  the  words 
of  the  grant  could  not  comprehend.  If,  then,  there  are  in  the 
constitution  plain  exceptions  from  the  power  over  navigation,  plain 
inhibitions  to  the  exercise  of  tha.t  power  in  a  particular  way,  it  is 
a  proof  that  those  who  made  these  exceptions,  and  prescribed  these 
inhibitions,  understood  the  power  to  which  they  applied  as  being 
granted. 

The  9th  section  of  the  1st  article  declares  that  "no  preference 
shall  be  given,  by  any  regulation  of  commerce  or  revenue,  to  the 
ports  of  one  State  over  those  of  another."  This  clause  cannot  be 
understood  as  applicable  to  those  laws  only  which  are  passed  for 
the  purposes  of  revenue,  because  it  is  expressly  applied  to  com- 
mercial regulations;  and  the  most  obvious  preference  which  can 
be  given  to  one  port  over  another,  in  regulating  commerce,  relates 
to  navigation.  But  the  subsequent  part  of  the  sentence  is  still 
more  explicit.  It  is,  "nor  shall  vessels  bound  to  or  from  one 
State,  be  obliged  to  enter,  clear,  or  pay  duties  in  another."  These 
words  have  a  direct  reference  to  navigation. 

The  universally  acknowledged  power  of  the  government  to  im- 
pose embargoes  must  also  be  considered  as  showing  that  all  Amer- 
ica is  united  in  that  construction  which  comprehends  navigation  in 
the  word  "commerce.''  Gentlemen  have  said,  in  argument,  that 
this  is  a  branch  of  the  war-making  power,  and  that  an  embargo  is 
an  instrument  of  war,  not  a  regulation  of  trade.  That  it  may  be, 
and  often  is,  used  as  an  instrument  of  war,  cannot  be  denied.  An 
embargo  may  be  imposed  for  the  purpose  of  facilitating  the  equip- 
ment or  manning  of  a  fleet,  or  for  the  purpose  of  concealing  the 
progress  of  an  expedition  preparing  to  sail  from  a  particular  port. 
In  these,  and  in  similar  cases,  it  is  a  military  instrument,  and  par- 
takes of  the  nature  of  war.  But  all  embargoes  are  not  of  this  de- 
scription. They  are  sometimes  resorted  to  without  a  view  to  war, 
and  with  a  single  view  to  commerce.  In  such  case  an  embargo  is 
no  more  a  war  measure  than  a  merchantman  is  a  ship  of  war,  be- 
cause both  are  vessels  which  navigate  the  ocean  with  sails  and 
seamen. 

When  congress  imposed  that  embargo  which,  for  a  time,  engaged 
the  attention  of  every  man  in  the  United  States,  the  avowed  ob- 
ject of  the  law  was  the  protection  of  commerce  and  the  avoiding 


J 


GIBBONS  V.  OGDEN.  177 

of  war.  By  its  friends  and  its  enemies  it  was  treated  as  a  commer- 
cial, not  as  a  war,  measure.  The  persevering  earnestness  and  zeal 
with  which  it  was  opposed,  in  a  part  of  our  country  which  supposed 
its  interests  to  be  vitally  affected  by  the  act,  cannot  be  forgotten. 
A  want  of  acuteness  in  discovering  objections  to  a  measure  to  which 
they  felt  the  most  deep-rooted  hostility,  will  not  be  imputed  to 
those  who  were  arrayed  in  opposition  to  this.  Yet  they  never  sus- 
pected that  navigation  was  no  branch  of  trade,  and  was,  therefore, 
not  comprehended  in  the  power  to  regulate  commerce.  They  did, 
indeed,  contest  the  constitutionality  of  the  act,  but  on  a  principle 
which  admits  the  construction  for  which  the  appellant  contends. 
They  denied  that  the  particular  law  in  question  was  made  in  pur- 
suance of  the  eonsititution,  not  because  the  power  could  not  act 
directly  on  vessels,  but  because  a  perpetual  embargo  was  the  an- 
nihilation, and  not  the  regulation,  of  commerce.  In  terms,  they 
admitted  the  applicability  of  the  words  used  in  the  constitution  to 
vessels;  and  that,  in  a  case  which  produced  a  degree  and  an  extent 
of  excitement  calculated  to  draw  forth  every  principle  on  which 
legitimate  resistance  could  be  sustained.  No  example  could  more 
strongly  illustrate  the  universal  understanding  of  the  American 
people  on  this  subject. 

The  word  used  in  the  constitution,  then,  comprehends,  and  has 
been  always  understood  to  comprehend,  navigation  within  its  mean- 
ing; and  a  power  to  regulate  navigation  is  as  expressly  granted  as 
if  that  term  had  been  added  to  the  word  "commerce." 

To  what  commerce  does  this  power  extend?  The  constitution, 
informs  us,  to  commerce  "with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes."  It  has,  we  believe, 
been  universally  admitted  that  these  words  comprehend  every 
species  of  commercial  intercourse  between  the  United  States  and 
foreign  nations.  No  sort  of  trade  can  be  carried  on  between  this 
country  and  any  other  to  which  this  power  does  not  extend.  It 
has  been  truly  said  that  commerce,  as  the  word  is  used  in  the  con- 
stitution, is  a  unit,  every  part  of  which  is  indicated  by  the  term. 
If  this  be  the  admitted  meaning  of  the  word,  in  its  application  to 
foreign  nations,  it  must  carry  the  same  meaning  throughout  the 
sentence,  and  remain  a  unit,  unless  there  be  some  plain  intelligible 
cause  which  alters  it. 

/^  The  subject  to  which  the  power  is  next  applied  is  to  commerce 
/  "among  the  several  States."  The  word  "among"  means  inter-| 
I  mingled  with.  A  thing  which  is  among  others  is  intermingled 
\    with  them.    Commerce  among  the  States  cannot  stop  at  the  ex- 


178  CASES  ON  CONSTITUTIONAL  LAW. 

temal  boundary  line  of  each  State,  but  may  be  introduced  into 
the  interior. 

It  is  not  intended  to  say  that  these  words  comprehend  that  com- 
merce which  is  completely  internal,  which  is  carried  on  between 
man  and  man  in  a  State,  or  between  different  parts  of  the  same 
State,  and  which  does  not  extend  to  or  affect  other  States.  Such 
a  power  would  be  inconvenient  and  is  certainly  unnecessary. 

Com.prehensive  as  the  word  "among"  is,  it  may  very  properly  be 
restricted  to  that  commerce  which  concerns  more  States  than  one. 
The  phrase  is  not  one  which  would  probably  have  been  selected 
to  indicate  the  completely  interior  traffic  of  a  State,  because  it  is 
not  an  apt  phrase  for  that  purpose;  and  the  enumeration  of  the 
particular  classes  of  commerce  to  which  the  power  was  to  be  ex- 
tended would  not  have  been  made  had  the  intention  been  to  extend 
the  power  to  every  description.  The  enumeration  presupposes 
something  not  enumerated;  and  that  something,  if  we  regard  the 
language  or  the  subject  of  the  sentence,  must  be  the  exclusively 
internal  commerce  of  a  State.  The  genius  and  character  of  the 
whole  government  seem  to  be,  that  its  action  is  to  be  applied  to  all 
the  external  concerns  of  the  nation,  and  to  those  internal  con- 
cerns which  affect  the  States  generally;  but  not  to  those  which  are 
completely  within  a  particular  State,  which  do  not  affect  other 
Staites,  and  with  which  it  is  not  necessary  to  interfere  for  the  pur- 
pose of  executing  some  of  the  general  powers  of  the  government. 
The  completely  internal  commerce  of  a  State,  then,  may  be  con- 
sidered as  reserved  for  the  State  itself. 

But,  in  regulating  commerce  with  foreign  nations,  the  power  of 
congress  does  not  stop  at  the  jurisdictional  lines  of  the  several 
States.  It  would  be  a  very  useless  power  if  it  could  not  pass  those 
lines.  The  commerce  of  the  United  States  with  foreign  nations  is 
that  of  the  whole  United  States.  Every  district  has  a  right  to 
participate  in  it.  The  deep  streams  which  penetrate  our  country 
in  every  direction  pass  through  the  interior  of  almost  every  State 
in  the  Union,  and  furnish  the  means  of  exercising  this  right.  If 
congress  has  the  power  to  regulate  it,  that  power  must  be  exer- 
cised whenever  the  subject  exists.  If  it  exists  within  the  States, 
if  a  foreign  voyage  may  commence  or  terminate  at  a  port  within  a 
State,  then  the  power  of  Congress  may  be  exercised  within  a 
State. 

This  principle  is,  if  possible,  still  more  clear  when  applied  to 
commerce  "among  the  several  States."  They  either  join  each 
other,  in  which  case  they  are  separated  by  a  mathematical  line,  or 
they  are  remote  from  each  other,  in  which  ease  other  States  lie 


GIBBONS  V.  OGDEN.  179 

between  them.  What  is  commerce  "among"  them;  and  how  is  it 
to  be  conducted?  Can  a  trading  expedition  between  two  adjoining 
States  commence  and  terminate  outside  of  each?  And  if  the  trad- 
ing intercourse  be  between  two  States  remo^;e  from  each  other, 
must  it  not  commence  in  one,  terminate  in  the  other,  and  probably 
pass  through  a  third?  Commerce  among  the  States  must,  of  neces- 
sity, be  commerce  with  the  States.  In  the  regulation  of  trade  with 
the  Indian  tribes,  the  action  of  the  law,  especially  when  the  consti- 
tution was  made,  was  chiefly  within  a  State  .  The  power  of  congress, 
then,  whatever  it  may  be,  must  be  exercised  within  the  territorial 
jurisdiction  of  the  several  States.  The  sense  of  the  nation  on  this 
subject  is  unequivocally  manifested  by  the  provisions  made  in  the 
laws  for  transporting  goods  by  land  between  Baltimore  and  Provi- 
dence, between  New  York  and  Philadelphia,  and  between  Phila- 
delphia and  Baltimore. 

We  are  now  arrived  at  the  inquiry,  what  is  this  power? 

It  is  the  power  to  regulate;  that  is,  to  prescribe  the  rule  by 
which  commerce  is  to  be  governed.  This  power,  like  all  others 
vested  in  congress,  is  complete  in  itself,  may  be  exercised  to  its 
utmost  extent,  and  acknowledges  no  limitations  other  than  are 
prescribed  in  the  constitution.  These  are  expressed  in  plain  terms, 
and  do  not  affect  the  questions  which  arise  in  this  case,  or  which 
have  been  discussed  at  the  bar.  If,  as  has  always  been  understood, 
the  sovereignty  of  congress,  though  limited  to  specified  objects,  is 
plenary  as  to  those  objects,  the  power  over  commerce  with  foreign 
nations,  and  among  the  several  States,  is  vested  in  congress  as  ab- 
solutely as  it  would  be  in  a  single  government,  having  in  its  consti- 
tution the  same  restrictions  on  the  exercise  of  the  power  as  are 
found  in  the  Constitution  of  the  United  States.  The  wisdom  and 
the  discretion  of  congress,  their  identity  with  the  people,  and  the 
influence  which  their  constituents  possess  at  elections,  are,  in  this, 
as  in  many  other  instances,  as  that,  for  example,  of  declaring  war, 
the  sole  restraints  on  which  they  have  relied,  to  secure  them  from 
its  abuse.  They  are  the  restraints  on  which  the  peop'le  must  often 
rely  solely,  in  all  representative  governments. 

The  power  of  congress,  then,  comprehends  navigation  withil 
the  limits  of  every  State  in  the  Union,  so  far  as  that  navigation 
may  be,  in  any  manner,  connected  with  "commerce  with  foreign 
nations,  or  among  the  several  States,  or  with  the  Indian  tribes." 
It  may,  of  consequence,  pass  the  jurisdictional  line  of  New  York,) 
and  act  upon  the  very  waters  to  which  the  prohibition  now  undei 
consideration  applies. 

But  it  has  been  urged  with  great  earnestness  that,  although  the 


I 


180  CASES  ON   CONSTITUTIONAL  LAW. 

power  of  congress  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  be  co-extensive  with  the  subject  itself, 
and  have  no  other  limits  than  are  prescribed  in  the  constitution, 
yet  the  States  may  severally  exercise  the  same  power  within  their 

.      respective  jurisdictions.    In  support  of  this  argument,  it  is  said 

-"^    that  they  possessed  it  as  an  inseparable  attribute  of  sovereignty 

before  the  formation  of  the  constitution,  and  still  retain  it,  except 

so  far  as  they  have  surrendered  it  by  that  instrument;   that  this 

principle  results  from  the  nature  of  the  government,  and  is  secured 

by  the  tenth  amendment;    that  an  affirmative  grant  of  power  is 

not  exclusive,  unless  in  its  own  nature  it  be  such  that  the  continued 

exercise  of  it  by  the  former  possessor  is  inconsistent  with  the 

grant,  and  that  this  is  not  of  that  description. 

/     The  appellant,  conceding  these  postulates,  except  the  last,  con- 

/  tends  that  full  power  to  regulate  a  particular  subject  implies  the 

/     whole  power,  and  leaves  no  residuum;   that  a  grant  of  the  whole 

/      is  incompatible  with  the  existence  of  a  right  in  another  to  any 

I      part  of  it. 

>  Both  parties  have  appealed  to  the  constitution,  to  legislative 
acts,  and  judicial  decisions;  and  have  drawn  arguments  from  all 
these  sources  to  support  and  illustrate  the  propositions  they  re- 
spectively maintain. 

The  grant  of  the  power  to  lay  and  collect  taxes  is,  like  the  power 
to  regulate  commerce,  made  in  general  terms,  and  has  never  been, 
understood  to  interfere  with  the  exercise  of  the  same  power  lay  the 
States;  and  hence  has  been  drawn  an  argument  which  has  been 
applied  to  the  question  under  consideration.  But  the  two  grants 
are  not,  it  is  conceived,  similar  in  their  terms  or  their  nature. 
Although  many  of  the  powers  formerly  exercised  by  the  States  are 
'  transferred  to  the  government  of  the  Union,  yet  the  State  gov- 
ernments remain,  and  constitute  a  most  important  part  of  our 
system.  The  power  of  taxation  is  indispensable  to  their  existence, 
and  is  a  power  which,  in  its  own  nature,  is  capable  of  residing  in, 
and  being  exercised  by,  different  authorities  at  the  same  time. 
We  are  accustomed  to  see  it  placed,  for  different  purposes,  in  dif- 
ferent hands.  Taxation  is  the  simple  operation  of  taking  small  por- 
tions from  a  perpetually  accumulating  mass,  susceptible  of  almost 
infinite  division;  and  a  power  in  one  to  take  what  is  necessary  for 
certain  purposes,  is  not  in  its  nature  incompatible  with  a  power  in 
another  to  take  what  is  necessary  for  other  purposes.  Congress  is 
authorized  to  lay  and  collect  taxes,  etc.,  to  pay  the  debts,  and  pro- 
vide for  the  common  defense  and  general  welfare  of  the  United 
States.    This  does  not  interfere  with  the  power  of  the  States  to 


GIBBONS  V.  OGDEN.  181 

Aax  for  the  support  of  their  own  governments;  nor  is  the  exercise 
/  of  that  power  by  the  States  an  exercise  of  any  portion  of  the 
//    power  that  is  granted  to  the  United  States.     In  imposing  taxes 
/     for  State  purposes,  they  are  not  doing  what  congress  is  empowered 
/      to  do.    Congress  is  not  empowered  to  tax  for  those  purposes  which 
/       are  within  the  exclusive  province  of  the  States.    When,  then,  each 
I        government  exercises  <the  power  of  taxation,  neither  is  exercising 
I        the  power  of  the  other.    But  when  a  State  proceeds  to  regulate 
\       commerce  with  foreign  nations,  or  among  the  several  States,  it  is 
\      exercising  the  very  power  that  is  granted  to  congress,  and  is  doing 
\    the  very  thing  which  congress  is  authorized  to  do.     There  is  no 
analogy,  then,  between  the  power  of  taxation  and  the  power  of  reg- 
ulating commerce. 

In  discussing  the  question  whether  this  power  is  still  in  the 
States,  in  the  case  under  consideration,  we  may  dismiss  from  it 
the  inquiry,  whether  it  is  surrendered  by  the  mere  grant  to  con- 
gress, or  is  retained  until  congress  shall  exercise  the  power.  We 
may  dismiss  that  inquiry  because  it  has  been  exercised,  and  the 
regulations  which  congress  deemed  it  proper  to  make  are  now  in 
full  operation.  The  sole  question  is,  can  a  State  regulate  com- 
merce witii  foreign  nations  and  among  the  States  while  congress 
is  regulating  it? 

The  counsel  for  the  respondent  answer  this  question  in  the 
aflEirmative,  and  rely  very  much  on  the  restrictions  in  the  10th  sec- 
tion as  supporting  their  opinion.     .     .     . 

These  restrictions,  then,  are  on  the  taxing  power,  not  on  that 
to  regulate  commerce;  and  presuppose  the  existence  of  that  which 
they  restrain,  not  of  that  which  they  do  not  purport  to  restrain. 

But  the  inspection  laws  are  said  to  be  regulations  of  com- 
merce, and  are  certainly  recognized  in  the  constitution  as  being 
passed  in  the  exercise  of  a  power  remaining  with  the  States. 

That  inspection  laws  may  have  a  remote  and  considerable  influ- 
ence on  commerce,  will  not  be  denied;  but  that  a  power  to  regu- 
late commerce  is  the  source  from  which  the  right  to  pass  them 
is  derived,  cannot  be  admitted.  The  object  of  inspection  laws 
is  to  improve  the  quality  of  articles  produced  by  the  labor  of 
a  country,  to  fit  them  for  exportation,  or  it  may  be  for  domestic 
use.  They  act  upon  the  subject  before  it  becomes  an  article  of 
foreign  commerce  or  of  commerce  among  the  States,  and  prepare 
it  for  that  purpose.  They  form  a  portion  of  that  immense  mass 
of  legislation  which  embraces  everything  within  the  territory  of 
a  State  not  surrendered  to  a  general  government;  all  which  can 
be  most  advantageously  exercised  by  the  States  themselves.    In- 


182  CASES  ON  CONSTITUTIONAL  LAW. 

spection  laws,  quarantine  laws,  health  laws  of  every  description, 
as  well  as  laws  for  regulating  the  internal  commerce  of  a  State, 
and  those  which  respect  turnpike  roads,  ferries,  etc.,  are  com- 
ponent parts  of  this  mass. 

No  direct  general  power  over  these  objects  is  granted  to  con- 
gress; and,  consequently,  they  remain  subject  to  State  legisla- 
tion. If  the  legislative  power  of  the  Union  can  reach  them,  it 
must  be  for  national  purposes;  it  must  be  where  the  power  is 
expressly  given  for  a  special  purpose,  or  is  clearly  incidental  to 
some  power  which  is  expressly  given.  It  is  obvious  that  the  gov- 
ernment of  the  Union,  in  the  exercise  of  its  express  powers, — 
that,  for  example,  of  regulating  commerce  with  foreign  nations  and 
among  the  States, — may  use  means  that  may  also  be  employed  by 
a  State  in  the  exercise  of  its  acknowledged  powers;  that,  for  ex- 
ample, of  regulating  commerce  within  the  State.  If  congress 
license  vessels  to  sail  from  one  port  to  another  in  the  same  State, 
the  act  is  supposed  to  be  necessarily  incidental  to  the  power  ex- 
pressly granted  to  congress,  and  implies  no  claim  of  a  direct  power 
to  regulate  the  purely  internal  commerce  of  a  State,  or  to  act 
directly  on  its  system  of  police.  So  if  a  State,  in  passing  laws 
on  subjects  acknowledged  to  be  within  its  control,  and  with  a 
view  to  those  subjects,  shall  adopt  a  measure  of  the  same  character 
with  one  which  congress  may  adopt,  it  does  not  derive  its  authority 
from  the  particular  power  which  has  been  granted,  but  from  some 
other  which  remains  with  the  State,  and  may  be  executed  by  the 
same  means.  All  experience  shows  that  the  same  measures^  or 
measures  scarcely  distinguishable  from  each  other,  may  flow  from 
distinct  powers;  but  this  does  not  prove  that  the  powers  themselves 
are  identical.  Although  the  means  used  in  their  execution  may 
sometimes  approach  each  other  so  nearly  as  to  be  confounded,  there 
are  other  situations  in  which  they  are  sufficiently  distinct  to  estab- 
lish their  individuality. 

In  our  complex  system,  presenting  the  rare  and  difficult  scheme 
of  one  general  government  whose  action  extends  over  the  whole, 
but  which  possesses  only  certain  enumerated  powers;  and  of 
numerous  State  governments,  which  retain  and  exercise  all  powers 
not  delegated  to  the  Union,  contests  respecting  power  must  arise. 
Were  it  even  otherwise,  the  measures  taken  by  the  respective  gov- 
ernments to  execute  their  acknowledged  powers  would  often  be 
of  the  same  description,  and  might  sometimes  interfere.  This, 
however,  does  not  prove  that  the  one  is  exercising,  or  has  a  right 
to  exercise,  the  powers  of  the  other. 


GIBBONS  V.  OGDEN.  183 

The  acts  of  congress,  passed  in  1796  and  1799/  empowering  and 
directing  the  officers  of  the  general  government  to  conform  to, 
and  assist  in,  the  execution  of  the  quarantine  and  health  laws 
of  a  State,  proceed,  it  is  said,  upon  the  idea  that  these  laws  are 
constitutional.  It  is  undoubtedly  true  that  they  do  proceed  upon 
that  idea;  and  the  constitutionality  of  such  laws  has  never,  so 
far  as  we  are  informed,  been  denied.  But  they  do  not  imply  an 
acknowledgment  that  a  State  may  rightfully  regulate  commerce 
with  foreign  nations,  or  among  the  States;  for  they  do  not  imply 
that  such  laws  are  an  exercise  of  that  power,  or  enacted  with  a  view 
to  it.  On  the  contrary,  they  are  treated  as  quarantine  and  health 
laws,  are  so  denominated  in  the  acts  of  congress,  and  are  considered 
as  flowing  from  the  acknowledged  power  of  a  State  to  provide  for 
the  health  of  its  citizens.  But  as  it  was  apparent  that  some  of  the 
provisions  made  for  this  purpose,  and  in  virtue  of  this  power, 
might  interfere  with,  and  be  affected  by,  the  laws  of  the  United 
States  made  for  the  regulation  of  commerce,  congress,  in  that 
spirit  of  harmony  and  conciliation  which  ought  always  to  charac- 
terize the  conduct  of  governments  standing  in  the  relation  .which 
that  of  the  Union  and  those  of  the  States  bear  to  each  other,  has 
directed  its  officers  to  aid  in  the  execution  of  these  laws;  and  has, 
in  some  measure,  adapted  its  own  legislation  to  this  object  by 
making  provisions  in  aid  of  those  of  the  States.  But  in  making 
these  provisions  the  opinion  is  unequivocally  manifested  that  con- 
gress may  control  the  State  laws,  so  far  as  it  may  be  necessary  to 
control  them,  for  the  regulation  of  commerce. 

The  act  passed  in  1803,^  prohibiting  the  importation  of  slaves 
into  any  State  which  shall  itself  prohibit  their  importation,  im- 
plies, it  is  said,  an  admission  that  the  States  possessed  the  power  to 
exclude  or  admit  them;  from  which  it  is  inferred  that  they  pos- 
sess the  same  power  with  respect  to  other  articles. 

If  this  inference  were  correct;  if  this  power  was  exercised,  not 
under  any  particular  clause  in  the  constitution,  but  in  virtue  of  a 
general  right  over  the  subject  of  commerce,  to  exist  as  long  as 
the  constitution  itself, — it  might  now  be  exercised.  Any  State 
might  now  import  African  slaves  into  its  own  territory.  But  it  is 
obvious  that  the  power  of  the  States  over  this  subject,  previous 
to  the  year  1808,  constitutes  an  exception  to  the  power  of  con- 
gress to  regulate  commerce,  and  the  exception  is  expressed  in  such 
words  as  to  manifest  clearly  the  intention  to  continue  the  pre- 
existing right  of  the  States  to  admit  or  exclude  for  a  limited  pe- 

1 1  Stats,  at  Large,  474,  319.  a  3  Stats,  at  Large,  p.  629. 


184  CASES  ON  CONSTITUTIONAL  LAW. 

riod.  The  words  are,  "the  migration  or  importation  of  such  per- 
sons as  any  of  the  States  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  congress  prior  to  the  year 
1808."  The  whole  object  of  the  exception  is,  to  preserve  the  power 
to  those  States  which  might  be  disposed  to  exercise  it;  and  its 
language  seems  to  the  court  to  convey  this  idea  unequivocally.  The 
possession  of  this  particular  power,  then,  during  the  time  limited 
in  the  constitution,  cannot  be  admitted  to  prove  the  possession 
of  any  other  similar  power. 

It  has  been  said  that  the  act  of  August  7,  1789,^  acknowledges 
a  concurrent  power  in  the  States  to  regulate  the  conduct  of  pilots, 
and  hence  is  inferred  an  admission  of  their  concurrent  right  with 
congress  to  regulate  commerce  with  foreign  nations  and  amongst 
the  States.  But  this  inference  is  not,  we  think,  justified  by  the 
fact.  Although  congress  cannot  enable  a  State  to  legislate,  con- 
gress may  adopt  the  provisions  of  a  State  on  any  subject.  When 
■the  government  of  the  Union  was  brought  into  existence,  it  found 
a  system  for  the  regulation  of  its  pilots  in  full  force  in  every  State. 
The  E^ct  which  has  been  mentioned  adopts  this  system,  and  gives 
it  the  same  validity  as  if  its  provisions  had  been  specially  made 
by  congress.  But  the  act,  it  may  be  said,  is  prospective  also,  and 
the  adoption  of  laws  to  be  made  in  future  presupposes  the  right 
in  the  maker  to  legislate  on  the  subject. 

The  act  unquestionably  manifests  an  intention  to  leave  this 
subject  entirely  to  the  States  until  congress  should  think  proper 
to  interpose;  but  the  very  enactment  of  such  a  law  indicates 
an  opinion  that  it  was  necessary;  that  the  existing  system  would 
not  be  applicable  to  the  new  state  of  things  unless  expressly  applied 
to  it  by  congress.  But  this  section  is  confined  to  pilots  within  the 
*T)ays,  inlets,  rivers,  harbors,  and  ports  of  the  United  States,"  which 
are,  of  course,  in  whole  or  in  part,  also  within  the  limits  of  some 
particular  State.  The  acknowledged  power  of  a  State  to  regulate 
its  police,  its  domestic  trade,  and  to  govern  its  own  citizens,  may 
enable  it  to  legislate  on  this  subject  to  a  considerable  extent;  and 
the  adoption  of  its  system  by  congress,  and  the  application  of  it 
to  the  whole  subject  of  commerce,  does  not  seem  to  the  court  to 
imply  a  right  in  the  States  so  to  apply  it  of  their  own  authority. 
But  the  adoption  of  the  State  system  being  temporary,  being  only 
"until  further  legislative  provision  shall  be  made  by  congress," 
shows  conclusively  an  opinion  that  congress  could  control  the  whole 
subject,  and  might  adopt  the  system  of  the  States,  or  provide  one 
of  its  own. 

s  1  stats,  at  Large,  54. 


GIBBONS  V.  OGDEN.  185 

A  State,  it  is  said,  or  even  a  private  citizen,  may  construct  light- 
houses. But  gentlemen  must  be  aware  that  if  this  proves  a  power 
in  a  State  to  regulate  commerce,  it  proves  that  the  same  power 
is  in  the  citizen.  States,  or  individuals  who  own  lands,  may,  if 
not  forbidden  by  law,  ereot  on  those  lands  what  buildings  they 
please;  but  this  power  is  entirely  distinct  from  that  of  regulating 
commerce,  and  may,  we  presume,  be  restrained  if  exercised  so  as 
to  produce  a  public  mischief. 

These  acts  were  cited  at  the  bar  for  the  purpose  of  showing  an 
opinion  in  congress  that  the  States  possess,  concurrently  with  the 
legislature  of  the  Union,  the  power  to  regulate  commerce  with 
foreign  nations  and  among  the  States.  Upon  reviewing  them,  we 
think  they  do  not  establish  the  proposition  they  were  intended 
to  prove.  They  show  the  opinion  that  the  States  retain  powers 
enabling  them  to  pass  the  laws  to  which  allusion  has  been  made, 
not  that  those  laws  proceed  from  the  particular  power  which  has 
been  delegated  to  congress. 

It  has  been  contended  by  the  counsel  for  the  appellant  that,  as 
the  word  to  "regulate"  implies  in  its  nature  full  power  over  the 
thing  to  be  regulaited,  it  excludes,  necessarily,  the  action  of  all 
others  that  would  perform  the  same  operation  on  the  same  thing. 
That  regulation  is  designed  for  the  entire  result,  applying  to 
those  parts  which  remain  as  they  were,  as  well  as  to  those  which 
are  altered.  It  produces  a  uniform  whole,  which  is  as  much  dis- 
turbed and  deranged  by  changing  what  the  regulating  power  de- 
signs to  leave  untouched,  as  that  on  which  it  has  operated. 
.  There  is  great  force  in  this  argument,  and  the  court  is  not  sat- 
isfied that  it  has  been  refuted. 

Since,  however,  in  exercising  the  power  of  regulating  their  own 
purely  internal  affairs,  whether  of  trading  or  police,  the  States  may 
sometimes  enact  laws,  the  validity  of  which  depends  on  their  inter- 
fering with,  and  being  contrary  to,  an  act  of  congress  passed  in 
pursuance  of  the  constitution,  the  court  will  enter  upon  the 
inquiry  whether  the  laws  of  New  York,  as  expounded  by  the  high- 
est tribunal  of  that  State,  have,  in  their  application  to  this  case, 
come  into  collision  with  an  act  of  congress,  and  deprived  a  citizen 
of  a  right  to  which  that  act  entitles  him.  Should  this  collision 
exist,  it  will  be  immaterial  whether  those  laws  were  passed  in 
virtue  of  a  concurrent  power  "to  regulate  commerce  with  foreign 
nart:ions  and  among  the  several  States,"  or,  in  virtue  of  a  power 
to  regulate  their  domestic  trade  and  police.  In  one  case  and  the 
other,  the  acts  of  New  York  must  yield  to  the  law  of  congress,  and 


186  CASES  ON  CONSTITUTIONAL  LAW. 

the  decision  sustaining  the  privilege  they  confer,  against  a  right 
given  by  a  law  of  the  Union,  must  be  erroneous.     .     .     . 

In  pursuing  this  inquiry  ai  the  bar,  it  has  been  said  that  the 
constitution  does  not  confer  the  right  of  intercourse  between  State 
and  State.  That  right  derives  its  source  from  those  laws  whose 
authority  is  acknowledged  by  civilized  man  throughout  the  world. 

/This  is  true.  The  constitution  found  it  an  existing  right,  and 
gave  to  congress  the  power  to  regulate  it.  In  the  exercise  of  this 
power,  congress  has  passed  "An  act  for  enrolling  or  licensing  ships 
or  vessels  to  be  employed  in  the  coasting  trade  and  fisheries,  and 
for  regulating  the  same."  The  counsel  for  the  respondent  contend 
that  this  act  does  not  give  the  right  to  sail  from  port  to  port,  but 
confines  itself  to  regulating  a  pre-existing  right,  so  far  only  as  to 
confer  certain  privileges  on  enrolled  and  licensed  vessels  in  its 
.exercise. 

It  will  at  once  occur  that  when  a  legislature  attaches  certain 
privileges  and  exemptions  to  the  exercise  of  a  right  over  which 
its  control  is  absolute,  the  law  must  imply  a  power  to  exercise  the 
right.  The  privileges  are  gone  if  the  right  itself  be  annihilated. 
It  would  be  contrary  to  all  reason  and  to  the  course  of  human 
affairs  to  say  that  a  State  is  unable  to  strip  a  vessel  of  the  particu- 
lar privileges  attendant  on  the  exercise  of  a  right,  and  yet  may 
annul  the  right  itself;  that  the  State  of  New  York  cannot  pre- 
vent an  enrolled  and  licensed  vessel  proceeding  from  Elizabeth- 
town,  in  New  Jersey,  to  New  York,  from  enjoying,  in  her  course 
and  on  her  entrance  into  port,  all  the  privileges  conferred  by  the  act 
of  congress,  but  can  shut  her  up  in  her  own  port,  and  prohibit 
altogether  her  entering  the  waters  and  ports  of  another  State. 
To  the  court  it  seems  very  clear  that  the  whole  act  on  the  subject 
of  the  coasting  trade,  according  to  those  principles  which  govern 
the  construction  of  statutes,  implies  unequivocally  an  authority 
to  licensed  vessels  to  carry  on  the  coasting  trade. 

But  we  will  proceed  briefly  to  notice  those  sections  which  bear 
more  directly  on  the  subject. 

The  first  section  declares  that  vessels  enrolled  by  virtue  of  a  pre- 
vious law,  and  certain  other  vessels,  enrolled  as  described  in  that 
act,  and  having  a  license  in  force,  as  is  by  the  act  required,  "and 
no  others,  shall  be  deemed  ships  or  vessels  of  the  United  States, 
entitled  to  the  privileges  of  ships  or  vessels  employed  in  the  coast- 
ing trade." 

This  section  seems  to  the  court  to  contain  a  positive  enactment 
that  the  vessels  it  describes  shall  be  entitled  to  the  privileges  of 
ships  or  vessels  employed  in  the  coasting  trade.    These  privileges 


GIBBONS  V.  OGDEN.  187 

cannot  be  separated  from  the  trade,  and  cannot  be  enjoyed  unless 
the  trade  may  be  prosecuted.  The  grant  of  the  privilege  is  an  idle, 
empty  form,  conveying  nothing,  unless  it  convey  the  right  to 
which  the  privilege  is  attached,  and  in  the  exercise  of  which  its 
whole  value  consists.  To  construe  these  words  otherwise  than  as 
entitling  the  ships  or  vessels  described  to  carry  on  the  coasting 
trade  would  be,  we  think,  to  disregard  the  apparent  intent  of 
the  act. 

The  4th  section  directs  the  proper  officer  to  grant  to  a  vessel 
qualified  to  receive  it,  "a  license  for  carrying  on  the  coasting 
trade;"  and  prescribes  its  form.  After  reciting  the  compliance 
of  the  applicant  with  the  previous  requisites  of  the  law,  the  opera- 
tive words  of  the  instrument  are,  "license  is  hereby  granted  for  the 
said  steamboat  Bellona  to  be  employed  in  carrying  on  the  coast- 
ing trade  for  one  year  from  the  date  hereof,  and  no  longer." 

These  are  not  the  words  of  the  officer;  they  are  the  words  of 
the  legislature;  and  convey  as  explicitly  the  authority  the  act 
intended  to  give,  and  operate  as  effectually,  as  if  they  had  been 
inserted  in  any  other  part  of  the  act  than  in  the  license  itself. 

The  word  "license"  means  permission,  or  authority;  and  a 
license  to  do  any  particular  thing  is  a  permission  or  authority  to 
do  that  thing;  and  if  granted  by  a  person  having  power  to  grant 
it,  transfers  to  the  grantee  the  right  to  do  whatever  it  purports 
to  authorize.  It  certainly  transfers  to  him  all  the  right  which 
the  grantor  can  transfer  to  do  what  is  within  the  terms  of  the 
license.  Would  the  validity  or  effect  of  such  an  instrument  be 
questioned  by  the  respondent  if  executed  by  persons  claiming  reg- 
ularly under  the  laws  of  New  York? 

The  license  must  be  understood  to  be  what  it  purports  to  be, — 
a  legislative  authority  to  the  steamboat  Bellona  "to  be  employed 
in  carrying  on  the  coasting  trade  for  one  year  from  this  date." 

It  has  been  denied  that  these  words  authorize  a  voyage  from 
New  Jersey  to  New  York.  It  is  true  that  no  ports  are  specified; 
but  it  is  equally  true  that  the  words  used  are  perfectly  intelligible, 
and  do  confer  such  authority  as  unquestionably  as  if  the  ports 
had  been  mentioned.  The  coasting  trade  is  a  term  well  under- 
stood. The  law  has  defined  it;  and  all  know  its  meaning  per- 
fectly. The  act  describes,  with  great  minuteness,  the  various  op- 
erations of  a  vessel  engaged  in  it;  and  it  cannot,  we  think,  be 
doubted  that  a  voyage  from  New  Jersey  to  New  York  is  one  of 
those  operations. 

Notwithstanding  the  decided  language  of  the  license,  it  has 


( 


188  CASES  ON  CONSTITUTIONAL  LAW. 

also  been  maintained  that  it  gives  no  right  to  trade,  and  that  its 
sole  purpose  is  to  confer  the  American  character. 

The  answer  given  to  this  argument,  that  the  American  char- 
acter is  conferred  by  the  enrollment  and  not  by  the  license,  is, 
we  think,  founded  too  clearly  in  the  words  of  the  law  to  require 
the  support  of  any  additional  observations.  The  enrollment  of 
vessels  designed  for  the  coasting  trade  corresponds  precisely  with 
the  registration  of  vessels  designed  for  the  foreign  trade,  and  re- 
quires every  circumstance  which  can  constitute  the  American 
character.  The  license  can  be  granted  only  to  vessels  already 
enrolled,  if  they  be  of  the  burden  of  twenty  tons  and  upwards,  and 
requires  no  circumstance  essential  to  the  American  character.  The 
object  of  the  license,  then,  cannot  be  to  ascertain  the  character  of 
the  vessel,  but  to  do  what  it  professes  to  do;  that  is,  to  give  per- 
mission to  a  vessel  already  proved  by  her  enrollment  to  be  Amer- 
ican to  carry  on  the  coasting  trade. 

But  if  the  license  be  a  permit  to  carry  on  the  coasting  trade, 
the  respondent  denies  that  these  boats  were  engaged  in  that  trade, 
or  that  the  decree  under  consideration  has  restrained  them  from 
prosecuting  it.  The  boats  of  the  appellant  were,  we  are  told, 
employed  in  the  transportation  of  passengers,  and  this  is  no  part 
of  that  commerce  which  congress  may  regulate. 

If,  as  our  whole  course  of  legislation  on  this  subject  shows,  the 
power  of  congress  has  been  universally  understood  in  America  to 
comprehend  navigation,  it  is  a  very  persuasive,  if  not  a  conclu- 
sive, argument  to  prove  that  the  construction  is  correct;  and  if 
it  be  correct,  no  clear  distinction  is  perceived  between  the  power 
to  regulate  vessels  employed  in  transporting  men  for  hire,  and 
property  for  hire.  The  subject  is  transferred  to  congress,  and  no 
exception  to  the  grant  can  be  admitted  which  is  not  proved  by  the 
words  or  the  nature  of  the  thing.  A  coasting  vessel  employed 
in  the  transportation  of  passengers  is  as  much  a  portion  of  the 
American  marine  as  one  employed  in  the  transportation  of  a  cargo; 
and  no  reason  is  perceived  why  such  vessel  should  be  withdrawn 
from  the  regulating  power  of  that  government,  which  has  been 
thought  best  fitted  for  the  purpose  generally.  The  provisions  of 
the  law  respecting  native  seamen  and  respecting  ownership,  are 
as  applicable  to  vessels  carrying  men  as  to  vessels  carrying  man- 
ufactures; and  no  reason  is  perceived  why  the  power  over  the 
subject  should  not  be  placed  in  the  same  hands.  The  argument 
urged  at  the  bar  rests  on  the  foundation  that  the  power  of  con- 
gress does  not  extend  to  navigation  as  a  branch  of  commerce,  and 
can  only  be  applied  to  that  subject  incidentally  and  occasionally. 


GIBBONS  V.  OGDEN.  189 

But  if  that  foundation  be  removed,  we  must  show  some  plain, 
intelligible  distinction,  supported  by  the  constitution,  or  by  rea- 
son, for  discriminating  between  the  power  of  congress  over  vessels 
employed  in  navigating  the  same  seas.  We  can  perceive  no  such 
distinction. 

If  we  refer  to  the  constitution,  the  inference  to  be  drawn  from 
it  is  rather  against  the  distinction.  The  section  which  restrains 
congress  from  prohibiting  the  migration  or  importation  of  such 
persons  as  any  of  the  States  may  think  proper  to  admit,  until  the 
year  1808,  has  always  been  considered  as  an  exception  from  the 
power  to  regulate  commerce,  and  certainly  seems  to  class  migra- 
tion with  importation.  Migration  applies  as  appropriately  to  vol- 
untary, as  importation  does  to  involuntary  arrivals;  and  so  far 
as  an  exception  from  a  power  proves  its  existence,  this  section 
proves  that  the  power  to  regulate  commerce  applies  equally  to 
the  regulation  of  vessels  employed  in  transporting  men  who  pass 
from  place  to  place  voluntarily,  and  to  those  who  pass  involun- 
tarily, 

dif  the  power  reside  in  congress,  as  a  portion  of  the  general  grant 
0  regulate  commerce,  then  acts  applying  that  power  to  vessels 
enerally  must  be  construed  as  comprehending  all  vessels.  If  none 
ppear  to  be  excluded  by  the  language  of  the  act,  none  can  be 
excluded  by  construction.  Vessels  have  always  been  employed,  to 
a  greater  or  less  extent,  in  the  transportation  of  passengers,  and 
have  never  been  supposed  to  be,  on  that  account,  withdrawn  from 
the  control  or  protection  of  congress.  Packets  which  ply  along 
the  coas-t,  as  well  as  those  which  make  voyages  between  Europe 
and  America,  consider  the  transportation  of  passengers  as  an  im- 
portant part  of  their  business.  Yet  it  has  never  been  suspected 
that  the  general  laws  of  navigation  did  not  apply  to  them. 

The  Duty  Act,  sections  23  and  46,^  contains  provisions  respect- 
ing passengers,  and  shows  that  vessels  which  transport  them  have 
the  same  rights,  and  must  perform  the  same  duties,  with  other 
vessels.    They  are  governed  bv  the  general  laws  of  navigation. 

In  the  progress  of  things,  this  seems  to  have  grown  into  a  par- 
ticular employment,  and  to  have  attracted  the  particular  atten- 
tion of  government.  Congress  was  no  longer  satisfied  with  com- 
prehending vessels  engaged  specially  in  this  business  within  those 
provisions  which  were  intended  for  vessels  generally;  and  on  the 
2d  of  March,  1819,  passed  "An  act  regulating  passenger  ships  and 
vessels."^    This  wise  and  humane  law  provides  for  the  safety  and 

1 1  Stats,  at  Large,  644,  661.  2  3  Stats,  at  Large,  488. 


V 


190  CASES  ON   CONSTITUTIONAL   LAW. 

comfort  of  passengers,  and  for  the  communication  of  everything 
concerning  them  which  may  interest  the  government,  to  the  de- 
partment of  State,  but  makes  no  provision  concerning  the  entry 
of  the  vessel,  or  her  conduct  in  the  waters  of  the  United  States. 
This,  we  think,  shows  conclusively  the  sense  of  congress  (if,  in- 
deed, any  evidence  to  that  point  could  be  required),  that  the  pre- 
existing regulations  comprehended  passenger  ships  among  others; 
and  in  prescribing  the  same  duties,  the  legislature  must  have  con- 
sidered them  as  possessing  the  same  rights. 

If,  then,  it  were  even  true,  that  The  Bellona  and  The  Stoudinger 
were  employed  exclusively  in  the  conveyance  of  passengers  be- 
tween New  York  and  New  Jersey,  it  would  not  follow  that  this 
occupation  did  not  constitute  a  part  of  the  coasting  trade  of  the 
United  States,  and  was  not  protected  by  the  license  annexed  to 
the  answer.  But  we  cannot  perceive  how  the  occupation  of  these 
vessels  can  be  drawn  into  question  in  the  case  before  the  court. 
The  laws  of  New  York,  which  grant  the  exclusive  privilege  set  up 
by  the  respondent,  take  no  notice  of  the  employment  of  vessels, 
and  relate  only  to  the  principle  by  which  they  are  propelled.  Those 
laws  do  not  inquire  whether  vessels  are  engaged  in  transport- 
ing men  or  merchandise,  but  whether  they  are  moved  by  steam 
or  wind.  If  by  the  former,  the  waters  of  New  York  are  closed 
against  them,  though  their  cargoes  be  dutiable  goods,  which  the 
laws  of  the  United  States  permit  them  to  enter  and  deliver  in 
New  York.  If  by  the  latter,  those  waters  are  free  to  them,  though 
they  should  carry  passengers  only.  In  conformity  with  the  law, 
is  the  bill  of  the  plaintiff  in  the  state  court.  The  bill  does  not 
complain  that  The  Bellona  and  The  Stoudinger  carry  passengers, 
but  that  they  are  moved  by  steam.  This  is  the  injury  of  which 
he  complains,  and  is  the  sole  injury  against  the  continuance  of 
"which  he  asks  relief.  The  bill  does  not  even  allege,  specially,  that 
those  vessels  were  employed  in  the  transportation  of  passengers, 
but  says,  generally,  that  they  were  employed  "in  the  transporta- 
tion of  passengers,  or  otherwise."  The  answer  avers  only  that 
they  are  employed  in  the  coasting  trade,  and  insists  on  the  right  to 
carry  on  any  trade  authorized  by  the  license.  No  testimony  is 
taken,  and  the  writ  of  injunction  and  decree  restrain  these  licensed 
vessels,  not  from  carrying  passengers,  but  from  being  moved 
through  the  waters  of  New  York  by  steam,  for  any  purpose  what- 
ever. 

The  questions,  then,  whether  the  conveyance  of  passengers  be 
part  of  the  coasting  trade,  and  whether  a  vessel  can  be  protected 
ii  that  occupation  by  a  coasting  license,  are  not,  and  cannot  be, 
I 


GIBBONS  V.  OGDEN.  191 

raised  in  this  case.  The  real  and  sole  question  seems  to  be,  whether 
a  steam  machine,  in  actual  use,  deprives  a  vessel  of  the  privileges 
conferred  by  a  license. 

In  considering  this  question,  the  first  idea  which  presents  itself, 
is  that  the  laws  of  congress  for  the  regulation  of  commercCj  do 
not  look  to  the  principle  of  which  vessels  are  moved.  That  sub- 
ject is  left  entirely  to  individual  discretion;  and  in  that  vast  and 
complex  system  of  legislative  enactment  concerning  it,  which  em- 
braces everything  which  the  legislature  thought  it  necessary  to 
notice,  there  is  not,  we  believe,  one  word  respecting  the  peculiar 
principle  by  which  vessels  are  propelled  through  the  water,  except 
what  may  be  found  in  a  single  act,"*  granting  a  particular  privilege 
to  steamboats.  With  this  exception,  every  act,  either  prescribing 
duties,  or  granting  privileges,  applies  to  every  vessel,  whether 
navigated  by  the  instrumentality  of  wind  or  fire,  of  sails  or  ma- 
chinery. The  whole  weight  of  proof,  then,  is  thrown  upon  him 
who  would  introduce  a  distinction  to  which  the  words  of  the  law 
give  no  countenance. 

If  a  real  difference  could  be  admitted  to  exist  between  vessels 
carrying  passengers  and  others,  it  has  already  been  observed  that 
there  is  no  fact  in  this  case  which  can  bring  up  that  question. 
And,  if  the  occupation  of  steam-boats  be  a  matter  of  such  general 
notoriety  that  the  court  may  be  presumed  to  know  it,  although 
not  specially  informed  by  the  record,  then  we  deny  that  the  trans- 
portation of  passengers  is  their  exclusive  occupation.  It  is  a  mat- 
ter of  general  history,  that,  in  our  western  waters,  their  principal 
employment  is  the  transportation  of  merchandise;  and  all  know, 
that  in  the  waters  of  the  Atlantic  they  are  frequently  so  em- 
ployed. 

But  all  inquiry  into  this  subject  seems  to  the  court  to  be  put 
completely  at  rest,  by  the  act  already  mentioned,  entitled,  "An 
act  for  the  enrolling  and  licensing  of  steamboats." 

This  act  authorizes  a  steamboat  employed,  or  intended  to  be 
employed,  only  in  a  river  or  bay  of  the  United  States,  owned 
wholly  or  in  part  by  an  alien,  resident  within  the  United  States,  to 
be  enrolled  and  licensed  as  if  the  same  belonged  to  a  citizen  of 
the  United  States. 

This  act  demonstrates  the  opinion  of  congress,  that  steamboats 
may  be  enrolled  and  licensed,  in  common  with  vessels  using  sails. 
They  are,  of  course,  entitled  to  the  same  privileges,  and  can  no 
more  be  restrained  from  navigating  waters,  and  entering  ports 

s  2  Stats,  at  Large,  694. 


192  CASES  ON  CONSTITUTIONAL  LAW. 

which  are  free  to  such  vessels,  than  if  they  were  wafted  on  their 
voyage  by  the  winds,  instead  of  being  propelled  by  the  agency  of 
fire.  The  one  element  may  be  as  legitimately  used  as  the  other, 
for  every  commercial  purpose  authorized  by  the  laws  of  the 
Union;  and  the  act  of  a  State  inhibiting  the  use  of  either  to  any 
vessel  having  a  license  under  the  act  of  congress,  comes,  we  think, 
in  direct  collision  witli  that  act. 

As  this  decides  the  cause,  it  is  unnecessary  to  enter  in  an 
examination  of  that  part  of  the  constitution  which  empowers  con- 
gress to  promote  the  progress   of  science  and  the  useful  arts. 

[Mb.  Justice  Johnson  delivered  a  concurring  opinion.] 

Note. — In  the  courts  of  New  York,  the  State  law  had  been 
upheld  as  constitutional  by  Chancellor  Kent  and  his  associates. 
The  reasons  for  Kent's  opinion  are  given  in  his  Commentaries,  i., 
433,  438. 


BEOWX  ET  AL.  v.  THE  STATE  OF  MARYLAND. 

12  Wheaton,  419.    Decided  1827. 

Error  to  the  court  of  appeals  of  Maryland. 

The  case  is  stated  in  the  opinion  of  the  court.     .     .     . 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  Judgment  rendered  in  the  court  of 
appeals  of  Maryland,  affirming  a  judgment  of  the  city  court  of  Bal- 
timore, on  an  indictment  found  in  that  court  against  the  plaintiffs 
in  error,  for  violating  an  act  of  the  legislature  of  Maryland.  The 
indictment  was  founded  on  the  2d  section  of  tha-t  act,  which  is 
in  these  words:  "And  be  it  enacted  that  all  importers  of  foreign 
articles  or  commodities,  of  dry  goods,  wares,  or  merchandise,  by 
bale  or  package,  or  of  wine,  rum,  brandy,  whiskey,  and  other  dis- 
tilled spirituous  liquors,  &c.,  and  other  persons  selling  the  same  by 
wholesale,  bale  or  package,  hogshead,  barrel,  or  tierce,  shall,  be- 
fore they  are  authorized  to  sell,  take  out  a  license,  as  by  the  orig- 
inal act  is  directed,  for  which  they  shall  pay  fifty  dollars;  and 
in  case  of  neglect  or  refusal  to  take  out  such  license,  shall  be 
subject  to  the  same  penalties  and  forfeitures  as  are  prescribed  by 
the  original  act  to  which  this  is  a  supplement."  The  indictment 
charges  the  plaintiffs  in  error  with  having  imported  and  sold  one 


BROWN    V.    STATE   OF    MARYLAND.  193 

package  of  foreign  dry  goods  without  having  license  to  do  so.  A 
judgment  was  rendered  against  them,  on  demurrer,  for  the  penalty 
which  the  act  prescribes  for  the  offense;  and  that  judgment  is  now 
before  this  court. 

This  cause  depends  entirely  on  the  question  whether  the  legisla- 
ture of  a  State  can  constitutionally  require  the  importer  of  foreign 
articles  to  take  out  a  license  from  the  State,  before  he  shall  be 
permitted  to  sell  a  bale  or  package  so  imported. 

It  has  been  truly  said,  that  the  presumption  is  in  favor  df  every 
legislative  act,  and- that  the  whole  burden  of  proof  lies  on  him 
who  denies  its  constitutionality.  The  plaintiffs  in  error  take  the 
burden  upon  themselves,  and  insist  that  the  act  under  consid- 
eration is  repugnant  to  two  provisions  in  the  constitution  of  the 
United  States. 

1.  To  that  which  declares  that  "no  State  shall,  without  the 
consent  of  congress,  lay  any  imposts,  or  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws." 

2.  To  that  which  declares  that  congress  shall  have  power  "to 
regulate  commerce  with  foreign  nations,  and  among  the  several 
States',  and  with  the  Indian  tribes." 

1.  The  first  inquiry  is  into  the  extent  of  the  prohibition  upon 
States  "to  lay  any  imposts  or  duties  on  impo::ts  or  exports."  The 
counsel  for  the  State  of  Maryland  would  confine  this  prohibition 
to  laws  imposing  duties  on  the  act  of  importation  or  exporta- 
tion. The  counsel  for  the  plaintiffs  in  error  give  them  a  much 
wider  scope. 

In  performing  the  delicate  and  important  duty  of  construing 
clauses  in  the  constitution  of  our  country,  which  involve  conflict- 
ing powers  of  the  government  of  the  Union,  and  of  the  respect- 
ive States,  it  is  proper  to  take  a  view  of  the  literal  meaning  of 
the  words  to  be  expounded,  of  their  connection  with  other  words, 
and  of  the  general  objects  to  be  accomplished  by  the  prohibitory 
clause,  or  by  the  grant  of  power. 

What,  then,  is  the  meaning  of  the  words,  "imposts,  or  duties 
on  imports  or  exports?" 

An  impost,  or  duty  on  imports,  is  a  custom  or  a  tax  levied  on 
articles  brought  into  a  country,  and  is  most  usually  secured  be- 
fore the  importer  is  allowed  to  exercise  his  rights  of  ownership 
over  them,  because  evasions  of  the  law  can  be  prevented  more 
certainly  by  executing  it  while  the  articles  are  in  its  custody.  It 
would  not,  however,  be  less  an  impost  or  duty  on  the  articles,  if 
it  were  to  be  levied  on  them  after  they  were  landed.    The  policy 


194  CASES  ON  CONSTITUTIONAL  LAW. 

and  consequent  practice  of  levying  or  securing  the  duty  before,  or 
on  entering  the  port,  does  not  limit  the  power  to  that  state  of 
things,  nor,  consequently,  the  prohibition,  unless  the  true  mean- 
ing of  the  clause  so  confines  it.  What,  then,  are  "imports"?  The 
lexicons  inform  us,  they  are  "things  imported."  If  we  appeal  to 
usage  for  the  meaning  of  the  word,  we  shall  receive  the  same 
answer.  They  are  the  articles  themselves  which  are  brought  into 
the  country.  "A  duty  on  imports,"  then,  is  not  merely  a  duty 
on  the  act  of  importation,  but  is  a  duty  on  the  thing  imported. 
It  is  not,  taken  in  its  literal  sense,  confined  to  a  duty  levied  while 
the  article  is  entering  the  country,  but  extends  to  a  duty  levied 
after  it  has  entered  the  country.  The  succeeding  words  of  the 
sentence  which  limit  the  prohibition,  show  the  extent  in  which 
it  was  understood.  The  limitation  is,  "except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws."  Now,  the  in- 
spection laws,  so  far  as  they  act  upon  articles  for  exportation,  are 
generally  executed  on  land,  before  the  article  is  put  on  board  the 
vessel;  so  far  as  they  act  upon  importations,  they  are  generally 
executed  upon  articles  which  are  landed.  The  tax  or  duty  of 
inspection,  then,  is  a  tax  which  is  frequently,  if  not  always  paid 
for  service  performed  on  land,  while  the  article  is  in  the  bosom 
of  the  country.  Yet  this  tax  is  an  exception  to  the  prohibition 
on  the  States  to  lay  duties  on  imports  or  exports.  The  exception 
was  made  because  the  tax  would  otherwise  have  been  within  the 
prohibition. 

If  it  be  a  rule  of  interpretation  to  which  all  assent,  that  the 
exception  of  a  particular  thing  from  general  words,  proves  that,  ini 
the  opinion  of  the  lawgiver,  the  thing  excepted  would  be  within 
the  general  clause  had  the  exception  not  been  made,  we  know 
no  reason  why  this  general  rule  should  not  be  as  applicable  to 
the  constitution  as  to  other  instruments.  If  it  be  applicable,  then 
this  exception  in  favor  of  duties  for  the  support  of  inspection  laws, 
goes  far  in  proving  that  the  framers  of  the  constitution  classed 
taxes  of  a  similar  character  with  those  imposed  for  the  purposes 
of  inspection,  with  duties  on  imports  and  exports,  and  supposed 
them  to  be  prohibited. 

If  we  quit  this  narrow  view  of  the  subject,  and  passing  from  the 
literal  interpretation  of  the  words,  look  to  the  objects  of  the  pro- 
hibition, we  find  no  reason  for  withdrawing  the  act  under  con- 
eideration  from  its  operation. 

From  the  vast  inequality  between  the  different  States  of  the 
confederacy,  as  to  commercial  advantages,  few  subjects  were  viewed 
with  deeper  interest,  or  excited  more  irritation,  than  the  manner 


f 


BROWN    V.    STATE    OF    MARYLAND.  195 

in  which  the  several  States  exercised,  or  seemed  disposed  to  exer- 
cise, the  power  of  laying  duties  on  imports.  From  motives  which 
were  deemed  sufficient  by  the  statesmen  of  that  day,  the  general 
power  of  taxation,  indispensably  necessary  as  it  was,  and  jealous 
as  the  States  were  of  any  encroachment  upon  it,  was  so  far  abridged 
as  to  forbid  them  to  touch  imports  or  exports,  with  the  single  ex- 
ception which  has  been  noticed.  Why  are  they  restrained  from 
imposing  these  duties?  Plainly,  because,  in  the  general  opinion, 
the  interest  of  all  would  be  best  promoted  by  placing  that  whole 
subject  under  the  control  of  congress.  Whether  the  prohibition 
to  "lay  imposts,  or  duties  on  imports  or  exports,"  proceeded  from 
an  apprehension  that  the  power  might  be  so  exercised  as  to  dis- 
turb that  equality  among  the  States  which  was  generally  advan- 
tageous, or  that  harmony  between  them  which  it  was  desirable 
to  preserve,  or  to  maintain  unimpaired  our  commercial  connec- 
tions with  foreign  nations,  or  to  confer  this  source  of  revenue  on 
the  government  of  the  Union,  or  whatever  other  motive  might 
have  induced  the  prohibition,  it  is  plain  that  the  object  would 
be  as  completely  defeated  by  a  power  to  tax  the  article  in  the 
hands  of  the  importer  the  instant  it  was  landed,  as  by  a  power  to 
tax  it  while  entering  the  port.  There  is  no  difference,  in  effect, 
between  a  power  to  prohibit  the  sale  of  an  article  and  a  power 
to  prohibit  its  introduction  into  the  country.  The  one  would 
be  a  necessary  consequence  of  the  other.  No  goods  would  be 
imported  if  none  could  be  sold.  No  object  of  any  description 
can  be  accomplished  by  laying  a  duty  on  importation,  which  may 
not  be  accomplished  with  equal  certainty  by  laying  a  duty  on  the 
thing  imported  in  the  hands  of  the  importer.  It  is  obvious,  that 
the  same  power  which  imposes  a  light  duty,  can  impose  a  very 
heavy  one,  one  which  amounts  to  a  prohibition.  Questions  of 
power  do  not  depend  on  the  degree  to  which  it  may  be  exercised. 
If  it  may  be  exercised  at  all,  it  must  be  exercised  at  the  will 
of  those  in  whose  hands  it  is  placed.  If  the  tax  may  be  levied 
in  this  form  by  a  State,  it  may  be  levied  to  an  extent  which  will 
defeat  the  revenue  by  impost,  so  far  as  it  is  drawn  from  impor- 
tations into  the  particular  State.  We  are  told  that  such  wild 
and  irrational  abuse  of  power  is  not  to  be  apprehended,  and  is 
not  to  be  taken  into  view  when  discussing  its  existence.  All 
power  may  be  abused;  and  if  the  fear  of  its  abuse  is  to  constitute 
an  argument  against  its  existence,  it  might  be  urged  against  the 
existence  of  that  which  is  universally  acknowledged,  and  which  is 
indispensable  to  the  general  safety.  The  States  will  never  be  so 
ad  as  to  destroy  their  own  commerce,  or  even  to  lessen  it. 


196  CASES  ON   CONSTITUTIONAL  LAW. 

We  do  not  dissent  from  these  general  propositions.  We  do  not 
suppose  any  State  would  act  so  unwisely.  But  we  do  not  place 
the  question  on  that  ground. 

These  arguments  apply  with  precisely  the  same  force  against 
the  whole  prohibition.  It  might,  with  the  same  reason,  be  said 
that  no  State  would  be  so  blind  to  its  own  interests  as  to  lay 
duties  on  importation  which  would  either  prohibit  or  diminish 
its  trade.  Yet  the  framers  of  our  constitution  have  thought  this 
a  power  which  no  State  ought  to  exercise.  Conceding,  to  the  full 
extent  which  is  required,  that  every  State  would,  in  its  legislation 
on  this  subject,  provide  judiciously  for  its  own  interests,  it  cannot 
be  conceded  that  each  would  respect  the  interests  of  others.  A 
duty  on  imports  is  a  tax  on  the  article  which  is  paid  by  the  con- 
sumer. The  great  importing  States  would  thus  levy  a  tax  on  the 
non-importing  States,  which  would  not  be  less  a  tax  because  their 
interest  would  afford  ample  security  against  its  ever  being  so 
heavy  as  to  expel  commerce  from  their  ports.  This  would  neces- 
sarily produce  countervailing  measures  on  the  part  of  those  States 
whose  situation  was  less  favorable  to  importation.  For  this,  among 
other  reasons,  the  whole  power  of  laying  duties  on  imports  was, 
with  a  single  and  slight  exception,  taken  from  the  States.  When 
we  are  inquiring  whether  a  particuar  act  is  within  this  prohi- 
bition, the  question  is  not,  whether  a  State  may  so  legislate  as  to 
hurt  itself,  but  whether  the  act  is  within  the  words  and  mischief 
of  the  prohibitory  clause.  It  has  already  been  shown,  that  a  tax 
on  the  article  in  the  hands  of  the  importer,  is  within  its  words; 
and  we  think  it  too  clear  for  controversy,  that  the  same  tax  is 
within  its  mischief.  We  think  it  unquestionable,  that  such  a  tax 
has  precisely  the  same  tendency  to  enhance  the  price  of  the  article, 
as  if  imposed  upon  it  while  entering  the  port. 

The  counsel  for  the  State  of  Maryland,  insist,  with  great  rea- 
son, that  if  the  words  of  the  prohibition  be  taken  in  their  utmost 
latitude,  they  will  abridge  the  power  of  taxation,  which  all  admit 
to  be  essential  to  the  States,  to  an  extent  which  has  never  yet 
been  suspected,  and  will  deprive  them  of  resources  which  are  nec- 
essary to  supply  revenue,  and  which  they  have  heretofore  been 
admitted  to  possess.  These  words  must,  therefore,  be  construed 
with  some  limitation;  and,  if  this  be  admitted,  they  insist  that 
entering  the  country  is  the  point  of  time  when  the  prohibition 
ceases,  and  the  power  of  the  State  to  tax  commences. 

It  may  be  conceded,  that  the  words  of  the  prohibition  ought 
not  to  be  pressed  to  their  utmost  extent;  that  in  our  complex 
system,  the  object  of  the  powers  conferred  on  the  government  of 


BROWN    V.    STATE   OF    MARYLAND.  197 

the  Union,  and  the  nature  of  the  often  conflicting  powers  which 
remain  in  the  States,  must  always  be  taken  into  view,  and  may 
aid  in  expounding  the  words  of  any  particular  clause.  But,  while 
we  admit  that  sound  principles  of  construction  ought  to  restrain 
all  courts  from  carrying  the  words  of  the  prohibition  beyond  the 
object  the  constitution  is  intended  ,to  secure;  that  there  must  be 
a  point  of  time  when  the  prohibition  ceases,  and  the  power  of  the 
State  to  tax  commences;  we  cannot  admit  that  this  point  of  time 
is  the  instant  that  the  article  enters  the  country.  It  is,  we  think, 
obvious  thait  this  construction  would  defeat  the  prohibition. 

The. constitutional  prohibition  on  the  States  to  lay  a  duty  on 
imports,  a  prohibition  which  a  vast  majo-rity  of  them  must  feel 
an  interest  in  preserving,  may  certainly  come  in  conflict  with  their 
acknowledged  power  to  tax  persons  and  property  within  their 
territory.  The  power,  and  the  restriction  on  it,  though  quite 
distinguishable  when  they  do  not  approach  each  other,  may  yet, 
like  the  intervening  colors  between  white  and  black,  approach  so 
nearly  as  to  perplex  the  understanding,  as  colors  perplex  the  vision 
in  marking  the  distinction  between  them.  Yet  the  distinction 
exists,  and  must  be  marked  as  the  cases  arise.  Till  they  do  arise, 
it  might  be  premature  to  state  any  rule  as  being  universal  in  its 
application.  It  is  sufficient  for  the  present  to  say,  generally,  that 
when  the  importer  has  so  acted  upon  the  thing  imported,  that  it 
has  become  incorporated  and  mixed  up  with  the  mass  of  property 
in  the  country,  it  has,  perhaps,  lost  its  distinctive  character  as  an 
import,  and  has  become  subject  to  the  taxing  power  of  the  State; 
but  while  remaining  the  property  of  the  importer,  in  his  ware- 
house, in  the  original  form  or  package  in  which  it  was  imported, 
a  tax  upon  it  is  too  plainly  a  duty  on  imports  to  escape  the  prohi- 
bition in  the  constitution. 

The  counsel  for  the  plaintiffs  in  error  contend  that  the  importer 
purchases,  by  payment  of  the  duty  to  the  United  States,  a  right 
to  dispose  of  his  merchandise,  as  well  as  to  bring  it  into  the 
country;  and  certainly  the  argument  is  supported  by  strong  rea- 
son, as  well  as  by  the  practice  of  nations,  including  our  own.  The 
object  of  importation  is  sale;  it  constitutes  the  motive  for  paying 
the  duties;  and  if  the  United  States  possess  the  power  of  confer- 
ring the  right  to  sell,  as  the  consideration  for  which  the  duty  is 
paid,  every  principle  of  fair  dealing  requires  that  they  should  be 
understod  to  confer  it.  The  practice  of  the  most  commercial  na- 
tions conforms  to  this  idea.  Duties,  according  to  that  practice,  are 
charged  on  those  articles  only  which  are  intended  for  sale  or  con- 
sumption in  the  country.     Thus,  sea  stores,  goods  imported  and 


/ 


198  CASES   ON   CONSTITUTIONAL   LAW. 

re-exported  in  the  same  vessel,  goods  landed  and  carried  over  land 
for  the  purpose  of  being  re-exported  from  some  other  port,  goods 
forced  in  by  stress  of  weather,  and  landed,  but  not 'for  sale,  are 
exempted  from  the  payment  of  duties.  The  whole  course  of  legis- 
lation on  the  subject  shows  that,  in  the  opinion  of  the  legislature, 
the  right  to  sell  is  connected  with  the  payment  of  duties. 

The  counsel  for  the  defendant  in  error  have  endeavored  to  illus- 
trate their  proposition,  that  the  constitutional  prohibition  ceases 
the  instant  the  goods  enter  the  country,  by  an  array  of  the  conse- 
quences which  they  suppose  must  follow  the  denial  of  it.  If  the 
importer  acquires  the  right  to  sell  by  the  payment  of  duties,  he 
may,  they  say,  exert  that  right  when,  where,  and  as  he  pleases, 
and  the  State  cannot  regulate  it.  He  may  sell  by  retail,  at  auction, 
or  as  an  itinerant  peddler.  He  may  introduce  articles,  as  gun- 
powder, which  endanger  a  city,  into  the  midst  of  its  population; 
he  may  introduce  articles  which  endanger  the  public  health,  and 
the  power  of  self-preservation  is  denied.  An  importer  may  bring 
in  goods,  as  plate,  for  his  own  use,  and  thus  retain  much  valuable 
property  exempt  from  taxation. 

These  objeotions  to  the  principle,  if  well  founded,  would  cer- 
tainly be  entitled  to  serious  consideration.  But  we  think  they 
will  be  found,  on  examination,  not  to  belong  necessarily  to  the 
principle,  and,  consequently,  not  to  prove  that  it  may  not  be  re- 
sorted to  with  safety  as  a  criterion  by  which  to  measure  the  extent 
of  the  prohibition. 

This  indictment  is  against  the  importer,  for  selling  a  package  of 
dry  goods  in  the  form  in  which  it  was  imported,  without  a  license. 
This  state  of  things  is  changed  if  he  sells  them,  or  otherwise 
mixes  them  with  the  general  property  of  the  State,  by  breaking 
up  his  packages,  and  traveling  with  them  as  an  itinerant  peddler. 
In  the  first  case,  the  tax  intercepts  the  import,  as  an  import^  in 
its  way  to  become  incorporated  with  the  general  mass  of  property, 
and  denies  it  the  privilege  of  becoming  so  incorporated  until  it 
shall  have  contributed  to  the  revenue  of  the  State.  It  denies  to 
the  importer  the  right  of  using  the  privilege  which  he  has  pur- 
chased from  the  United  States,  until  he  shall  have  also  purchased 
it  from  the  State.  In  the  last  cases,  the  tax  finds  the  article  al- 
ready incorporated  with  the  mass  of  property  by  the  act  of  the 
importer.  He  has  used  the  privilege  he  has  purchased,  and  has 
himself  mixed  them  up  with  the  common  mass,  and  the  law  may 
treat  them  as  it  finds  them.  The  same  observations  apply  to  plate, 
or  other  furniture  used  by  the  importer. 

So,  if  he  sells  by  auction.    Auctioneers  are  persons  licensed  by 


BROWN    V.    STATE    OF    MARYLAND.  199 

the  State,  and  if  the  importer  chooses  to  employ  them,  he  can  as 
little  object  to  paying  for  this  service,  as  for  any  other  for  which 
he  may  apply  to  an  officer  of  the  State.  The  ri^ht  of  sale  may 
very  well  be  annexed  to  importation,  without  annexing  to  it,  also, 
the  privilege  of  using  the  officers  licensed  by  the  State  to  make 
sales  in  a  peculiar  way. 

The  power  to  direct  the  removal  of  gunpowder  is  a  branch  of 
the  police  power,  which  unquestionably  remains,  and  ought  to 
remain,  with  the  States.  If  the  possessor  stores  it  himself  out  of 
town,  the  removal  cannot  be  a  duty  on  imports,  because  it  con- 
tributes nothing  to  the  revenue.  If  he  prefers  placing  it  in  a 
public  magazine,  it  is  because  he  stores  it  there,  in  his  own  opin- 
ion, more  advantageously  than  elsewhere.  We  are  not  sure  that 
this  may  not  be  classed  among  inspection  laws.  The  removal  or 
destruction  of  infectious  or  unsound  articles  is,  undoubtedly,  an 
exercise  of  that  power,  and  forms  an  express  exception  to  the  pro- 
hibition we  are  considering.  Indeed,  the  laws  of  the  United 
States  expressly  sanction  the  health  laws  of  a  State. 

The  principle,  then,  for  which  the  plaintiffs  in  error  contend, 
that  the  importer  acquires  a  right,  not  only  to  bring  the  articles 
into  the  country,  but  to  mix  them  with  the  common  mass  of  prop- 
erty, does  not  interfere  with  the  necessary  power  of  taxation  which 
is  acknowledge  to  reside  in  the  States,  to  that  dangerous  extent 
which  the  counsel  for  the  defendants  in  error  seem  to  apprehend. 
It  carries  the  prohibition  in  the  constitution  no  further  than  to 
prevent  the  States  from  doing  that  which  it  was  the  great  object 
of  the  constitution  to  prevent. 

But  if  it  should  be  proved,  that  a  duty  on  the  article  itself 
would  be  repugnant  to  the  constitution,  it  is  still  argued  that  this 
is  not  a  tax  upon  the  article,  but  on  the  person.  The  State,  it  is 
said,  may  tax  occupations,  an(3.  this  is  nothing  more. 

It  is  impossible  to  conceal  from  ourselves  that  this  is  varying 
the  form  without  varying  the  substance.  It  is  treating  a  prohibi- 
tion which  is  general,  as  if  it  were  confined  to  a  particular  mode 
of  doing  the  forbidden  thing.  All  must  perceive  that  a  tax  on 
the  sale  of  an  article,  imported  only  for  sale,  is  a  tax  on  the  article 
itself.  It  is  true  the  State  may  tax  occupations  generally,  but  this 
tax  must  be  paid  by  those  who  employ  the  individual,  or  is  a  tax 
on  his  business.  The  lawyer,  the  physician,  or  the  mechanic, 
must  either  charge  more  on  the  article  in  which  he  deals,  or  the 
thing  itself  is  taxed  through  his  person.  This  the  State  has  a 
right  to  do,  because  no  constitutional  prohibition  extends  to  it. 
So,  a  tax  on  the  occupation  of  an  importer  is,  in  like  manner,  a 


200  CASES  ON  CONSTITUTIONAL  LAW. 

tax  on  importation.  It  must  add  to  the  price  of  the  article, 
and  be  paid  by  the  consumer,  or  by  the  importer  himself,  in  like 
manner  as  a  direct  duty  on  the  article  itself  would  be  made. 
This  the  State  has  not  a  right  to  do,  because  it  is  prohibited  by 
the  constitution. 

In  support  of  the  argument  that  the  prohibition  ceases  the  in- 
stant the  goods  are  brought  into  the  country,  a  comparison  has 
been  drawn  between  the  opposite  words  export  and  import.  As, 
to  export,  it  is  said,  means  only  to  carry  goods  out  of  the  country; 
so,  to  import,  means  only  to  bring  them  into  it.  But,  suppose  we 
extend  this  comparison  to  the  two  prohibitions.  The  States  are 
forbidden  to  lay  a  duty  on  exports,  and  the  United  States  are  for- 
bidden to  lay  a  tax  or  duty  on  articles  exported  from  any  State. 
There  is  some  diversity  in  language,  but  none  is  perceivable  in  the 
act  which  is  prohibited.  The  United  States  have  the  same  right 
to  tax  occupations  which  is  possessed  by  the  States.  Now,  sup- 
pose the  United  States  should  require  every  exporter  to  take  out  a 
license,  for  which  he  should  pay  such  tax  as  congress  might  think 
proper  to  impose;  would  government  be  permitted  to  shield  itself 
from  the  just  censure  to  which  this  attempt  to  evade  the  prohibi- 
tions of  the  constitution  would  expose  it,  by  saying  that  this  was 
a  tax  on  the  person,  not  on  the  article,  and  that  the  legislature 
had  a  right  to  tax  occupations?  Or,  suppose  revenue  cutters  were 
to  be  stationed  off  the  coast  for  the  purpose  of  levying  a  duty  on  all 
merchandise  found  in  vessels  which  were  leaving  the  United  States 
for  foreign  countries;  would  it  be  received  as  an  excuse  for  this 
outrage,  were  the  government  to  say  that  exportation  meant  no 
more  than  carrying  goods  out  of  the  country,  and  as  the  pro- 
hibition to  lay  a  tax  on  imports,  or  things  imported,  ceased  the 
instant  they  were  brought  into  the  country,  so  the  prohibition  to 
tax  articles  exported  ceased  when  they  were  carried  out  of  the 
country? 

/^  We  think,  then,  that  the  act  under  which  the  plaintiffs  in  error 
/  were  indicted,  is  repugnant  to  that  article  of  the  constitution 
/    which  declares  that  "no  State  shall  lay  any  impost  or  duties  on 
/     imports  or  exports." 

11         2.  Is  it  also  repugnant  to  that  clause  in  the  constitution  which 
11      empowers  "congress  to  regulate  commerce  with  foreign  nations, 
U.     and  among  the  several  States,  and  with  the  Indian  tribes"? 
\         The  oppressed  and  degraded  state  of  commerce  previous  to  the 
adoption  of  the  constitution  can  scarcely  be  forgotten.     It  was 
regulated  by  foreign  nations  with  a  single  view  to  their  own  inter- 
ests;   and  our  disunited  efforts  to  counteract  their  restrictions 


BROWN    V.    STATE   OF    MARYLAND.  301 

were  rendered  impotent  by  want  of  combination.  Congress,  in- 
deed, possessed  the  power  of  making  treaties;  but  the  inability  of 
the  federal  government  to  enforce  them  had  become  so  apparent 
as  to  render  that  power  in  a  great  degree  useless.  Those  who  felt 
the  injury  arising  from  this  state  of  things,  and  those  who  were 
capable  of  estimating  the  influence  of  commerce  on  the  prosperity 
of  nations,  perceived  the  necessity  of  giving  the  control  over  this 
important  subject  to  a  single  government.  It  may  be  doubted 
whether  any  of  the  evils  proceeding  from  the  feebleness  of  the 
federal  government,  contributed  more  to  that  great  revolution 
which  introduced  the  present  system,  than  the  deep  and  general 
conviction  that  commerce  ought  to  be  regulated  by  congress.  It 
is  not,  therefore,  matter  of  surprise  that  the  grant  should  be  as 
extensive  as  the  mischief,  and  should  comprehend  all  foreign  com- 
merce, and  all  commerce  among  the  States.  To  construe  the 
power  so  as  to  impair  its  efficacy,  would  tend  to  defeat  an  object, 
in  the  attainment  of  \^hich  the  American  public  took,  and  justly 
took,  that  strong  interest  which  arose  from  a  full  conviction  of 
its  necessity. 

What,  then,  is  the  just  extent  of  a  power  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  States? 

This  question  was  considered  in  the  case  of  Gibbons  v.  Ogden, 
9  Wheat.  Rep.,  1,  in  which  it  was  declared  to  be  complete  in  itself, 
and  to  acknowledge  no  limitations  other  than  are  prescribed  by 
the  constitution.  The  power  is  co-extensive  with  the  subject  on 
which  it  acts,  and  cannot  be  stopped  at  the  external  boundary  of 
a  State,  but  must  enter  its  interior. 

We  deem  it  unnecessary  now  to  reason  in  support  of  these 
propositions.  Their  truth  is  proved  by  facts  continually  before 
our  eyes,  and  was,  we  think,  demonstrated,  if  they  could  require 
demonstration,  in  the  case  already  mentioned. 

If  this  power  reaches  the  interior  of  a  State,  and  may  be  there 
exercised,  it  must  be  capable  of  authorizing  the  sale  of  those 
articles  which  it  introduces.  Commerce  is  intercourse:  one  of 
its  most  ordinary  ingredients  is  traffic.  It  is  inconceivable,  that 
the  power  to  authorize  this  traffic,  when  given  in  the  most  com- 
prehensive terms,  with  the  intent  that  its  efficacy  should  be  com- 
plete, should  cease  at  the  point  when  its  continuance  is  indis- 
pensable to  its  value.  To  what  purpose  should  the  power  to 
allow  importation  be  given,  unaccompanied  with  the  power  to 
authorize  a  sale  of  the  thing  imported?  Sale  is  the  object  of  im- 
portation, and  is  an  essential  ingredient  of  that  intercourse,  of 
which  importation  constitutes  a  part.    It  is  as  essential  an  ingre- 


202  CASES  ON   CONSTITUTIONAL  LAW.. 

dient,  as  indispensable  to  the  existence  of  the  entire  thing,  then, 
as  importation  itself.  It  must  be  considered  as  a  component  part 
of  the  power  to  regulate  commerce.  Congress  has  a  right,  not 
only  to  authorize  importation,  but  to  authorize  the  importer  to 
seU. 

If  this  be  admitted,  and  we  think  it  cannot  be  denied,  what  can 
be  the  meaning  of  an  act  of  congress  which  authorizes  importa- 
tion, and  offers  the  privilege  for  sale  at  a  fixed,  price  to  every  per- 
son who  chooses  to  become  a  purchaser?  How  is  it  to  be  construed, 
if  an  intent  to  deal  honestly  and  fairly,  an  intent  as  wise  as  it  is 
moral,  is  to  enter  into  the  construction?  "V^Tiat  can  be  the  use  of 
the  contract,  what  does  the  importer  purchase,  if  he  does  not 
purchase  the  privilege  to  sell?  -.  >vj.  ■: 

What  would  be  the  language  of  a  foreign  government,  which 
should  be  informed  that  its  merchants,  after  importing  according 
to  law,  were  forbidden  to  sell  the  merchandise  imported?  What 
answer  would  the  United  States  give  to  the  complaints  and  just 
reproaches  to  which  such  an  extraordinary  circumstance  would 
expose  them?  No  apology  could  be  received,  or  even  offered. 
Such  a  state  of  things  would  break  up  commerce.  It  vnW  not 
meet  this  argument;  to  say,  that  this  state  of  things  will  never  be 
produced;  that  the  good  sense  of  the  States  is  a  sufficient  security 
against  it.  The  constitution  has  not  confided  this  subject  to  that 
good  sense.  It  is  placed  elsewhere.  The  question  is,  where  does, 
the  power  reside?  not,  how  far  will  it  be  probably  abused?  The 
power  claimed  by  the  State  is,  in  its  nature,  in  conflict  wdth  that 
given  to  congress;  and  the  greater  or  less  extent  in  which  it  may. 
be  exercised  does  not  eatexinto  the  inquiry  concerning  its  exist- 

eHCe.  ■;;>    V-  (    '  V  : 

We  think,  then,  that  if  the  power  to  authorize  a  sale  exists  in 
congress,  the  conclusion  that  the  right  to  sell  is  connected  with, 
the  law  permitting  importation,  as  an  inseparable  incident,  is 
inevitable.  ^ 

If  the  principles  we  have  stated  be  correct,  the  result  to  which 
they  conduct  us  cannot  be  mistaken.  Any  penalty  inflicted  on: 
the  importer  for  selling  the  article,  in  his  character  of  importer, 
must  be  in  opposition  to  the  act  of  congress  which  authorizes  im^ 
portation.  Any  charge  on  the  introduction  and  incorporation  of 
the  articles  into  and  with  the  mass  of  property  in  the  country, 
must  be  hostile  to  the  power  of  congress  to  regulate  commerccy 
since  an  essential  part  of  that  regulation,  and  principal  object  of 
it,  is,  to  prescribe  the  regular  means  for  accomplishing  that  intro- 
duction and  incorporation.  ,       j_i..v..,^i^:  ... 


BROWN    V.    STATE   OF    MARYLAND.  203 

The  distinction  between  a  tax  on  the  thing  imported  and  on  the 
person  of  the  importer,  can  have  no  influence  on  this  part  of  the 
subject.  It  is  too  obvious  for  controversy  that  they  interfere 
equally  with  the  power  to  regulate  commerce. 

It  has  been  contended  that  this  construction  of  the  power  to 
regulate  commerce,  as  was  contended  in  construing  the  prohibi- 
tion to  lay  duties  on  imports,  would  abridge  the  acknowledged 
power  of  a  State  to  tax  its  own  citizens,  or  their  property  within 
its  territory. 

We  admit  this  power  to  be  sacred;   but  cannot  admit  that  it 

ay  be  used  so  as  to  obstruct  the  free  course  of  a  power  given  to 
congress.  We  cannot  admit  that  it  may  be  used  so  as  to  obstruct 
or  defeat  the  power  to  regulate  commerce.  It  has  been  observed 
that  the  powers  remaining  with  the  States  may  be  so  exercised 
as  to  come  in  conflict  with  those  vested  in  congress.  When  this 
happens,  that  which  is  not  supreme  must  yield  to  that  which  is 
supreme.  This  great  and  universal  truth  is  inseparable  from  the 
nature  of  things,  and  the  constitution  has  applied  it  to  the  often 
interfering  powers  of  the  general  and  state  governments,  as  a  vital 
principle  of  perpetual  operation.  It  results,  necessarily,  from  this 
^principle,  that  the  taxing  power  of  the  States  must  have  some 
limits.  It  cannot  reach  and  restrain  the  action  of  the  national 
government  within  its  proper  sphere.  It  cannot  reach  the  admin- 
istration of  justice  in  the  courts  of  the  Union,  or  the  collection  of 
the  taxes  of  the  United  States,  or  restrain  the  operation  of  any 
law  which  congress  may  constitutionally  pass.  It  cannot  interfere 
with  any  regulation  of  commerce.  If  the  States  may  tax  all  per- 
sons and  property  found  on  their  territory,  what  shall  restrain 
them  from  taxing  goods  in  their  transit  through  the  State  from 
one  part  to  another,  for  the  purpose  of  re-exportation?  The  laws 
of  trade  authorize  this  operation,  and  general  convenience  re- 
quires it.  Or  what  should  restrain  a  State  from  taxing  any  article 
passing  through  it,  from  one  State  to  another,  for  the  purpose  of 
traffic?  or  from  taxing  the  transportation  of  articles  passing  from 
the  State  itself  to  another  State  for  commercial  purposes?  These 
cases  are  all  within  the  sovereign  power  of  taxation,  but  would  obr 
viously  derange  the  measures  of  congress  to  regulate  commerce, 
and  affect  materially  the  purpose  for  which  that  power  was  given. 
We  deem  it  unnecessary  to  press  this  argument  further,  or  to  give 
additional  illustrations  of  it,  because  the  subject  was  taken  up 
and  considered  with  great  attention,  in  McCulloch  v.  The  State  of 
Maryland,  4  W.,  316,  the  decision  in  which  case  is,  we  think,  en- 
tirely applicable  to  this. 


204  CASES  ON  CONSTITUTIONAL  LAW. 

It  may  be  proper  to  add  that  we  suppose  the  principles  laid 
down  in  this  case  to  apply  equally  to  inipori;ation8  from  a  sister 
State.  We  do  not  mean  to  give  any  opinion  on  a  tax  discriminat- 
ing between  foreign  and  domestic  articles. 

We  think  there  is  error  in  the  judgment  of  the  court  of  appeals 
of  the  State  of  Maryland,  in  affirming  the  judgment  of  the  Balti- 
more city  court,  because  the  act  of  the  legislature  of  Maryland, 
imposing  the  penalty  for  which  the  said  judgment  is  rendered,  is 
repugnant  to  the  constitution  of  the  United  States,  and,  conse- 
quently, void.  The  judgment  is  to  be  reversed,  and  the  ciause 
remanded  to  that  court,  with  instructions  to  enter  judgment  in 
favor  of  the  appellants. 

[Mb.  Justice  Thompson  gave  a  dissenting  opinion.] 


LICENSE  CASES. 

THURLOW  V.  THE    COMMONWEALTH    OF    MASSACHU- 
SETTS. 
FLETCHER   v.   THE   STATE    OF   RHODE   ISLAND. 
PEIRCE  ET  AL.  v.  THE  STATE  OF  NEW  HAMPSHIRE. 

5  Howard,  504.    Decided  1846. 

These  three  cases  came  up  on  writs  of  error  under  the  25th  sec- 
tion of  the  judiciary  act  of  1789,^  and  were  argued  together.  .  .  . 

It  is  not  deemed  necessary  to  set  out  the  statutes  on  which  the 
indictments  were  found.  Their  substance  and  effect  are  clearly 
stated  by  the  chief  justice,  as  well  as  by  the  other  judges,  in  their 
opinions,  and  there  was  no  controversy  concerning  their  construc- 
tion, or  meaning  and  effect. 

No  opinion  of  the  court  was  pronounced.  Each  justice  gave 
his  own  reasons  for  affirming  the  decision  of  the  state  courts. 

Taney,  C.  J.  In  the  cases  of  Thurlow  v.  The  State  of  Massa- 
chusetts, of  Fletcher  v.  The  State  of  Rhode  Island,  and  of  Peirce 
et  al.  V.  The  State  of  New  Hampshire,  the  judgments  of  the  re- 
spective state  courts  are  severally  affirmed. 

1 1  Stats,  at  Large,  85. 


LICENSE  CASES.  ^05 

The  justices  of  this  court  do  not,  however,  altogether  agree  in 
the  principles  upon  which  these  cases  are  decided,  and  I  there- 
fore proceed  to  state  the  grounds  upon  which  I  concur  in  affirm- 
ing the  judgments.  The  first  two  of  these  cases  depend  upon  pre- 
cisely the  same  principles;  and,  although  the  case  against  the 
State  of  New  Hampshire  differs  in  some  respects  from  the  others, 
yet  there  are  important  principles  common  to  all  of  them,  and 
on  that  account  it  is  more  convenient  to  consider  them  together. 
Each  of  the  cases  has  arisen  upon  state  laws,  passed  for  the  pur- 
pose of  discouraging  the  use  of  ardent  spirits  within  their  re- 
spective territories,  by  prohibiting  their  sale  in  small  quantities, 
and  without  licenses  previously  obtained  from  the  state  authori- 
ties. And  the  validity  of  each  of  them  has  been  drawn  in  ques- 
tion, upon  the  ground  that  it  is  repugnant  to  that  clause  of  the 
constitution  of  the  United  States  which  confers  upon  congress  the 
power  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  States.     .     .     . 

The  constitution  of  the  United  States  declares  that  that  consti- 
tution, and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land.  It  follows  that  a  law  of  congress,  regulating  com- 
merce with  foreign  nations,  or  among  the  several  States,  is  the 
supreme  law;  and  if  the  law  of  a  State  is  in  conflict  with  it,  the 
law  of  congress  must  prevail,  and  the  state  law  cease  to  operate 
so  far  as  it  is  repugnant  to  the  law  of  the  United  States. 

It  is  equally  clear  that  the  power  of  congress  over  this  subject 
does  not  extend  further  than  the  regulation  of  commerce  with 
foreign  nations  and  among  the  several  States;  and  that  beyond 
these  limits,  the  States  have  never  surrendered  their  power  over 
trade  and  commerce,  and  may  still  exercise  it,  free  from  any  con- 
trolling power  on  the  part  of  the  general  government.  Every 
State,  therefore,  may  regulate  its  own  internal  traffic,  according 
to  its  own  judgment,  and  upon  its  own  views  of  the  interest  and 
well-being  of  its  citizens. 

I  am  not  aware  that  these  principles  have  ever  been  ques- 
tioned. The  difficulty  has  always  arisen  on  their  application;  and 
that  difficulty  is  now  presented  in  the  Rhode  Island  and  Massa- 
chusetts cases,  where  the  question  is,  how  far  a  State  may  regulate 
or  prohibit  the  sale  of  ardent  spirits,  the  importation  of  which 
from  foreign  countries  has  been  authorized  by  congress.  Is  such 
a  law  a  regulation  of  foreign  commerce,  or  of  the  internal  traffic 
of  the  State? 


206  CASES  ON   CONSTITUTIONAL  LAW. 

It  is  unquestionably  no  easy  task  to  mark,  by  a  certain  and 
definite  line,  the  division  between  foreign  and  domestic  commerce, 
and  to  fix  the  precise  point,  in  relation  to  every  imported  article, 
where  the  paramount  power  of  congress  terminates,  and  that  of 
the  State  begins.  The  constitution  itself  does  not  attempt  to 
define  these  limits.  They  cannot  be  determined  by  the  laws  of 
congress  or  the  States,  as  neither  can,  by  its  own  legislation,  en- 
large its  own  powers,  or  restrict  those  of  the  other.  And  as  the 
constitution  itself  does  not  draw  the  line,  the  question  is  neces- 
sarily one  for  judicial  decision,  and  depending  altogether  upon 
the  words  of  the  constitution. 

This  question  came  directly  before  the  court,  for  the  first  time, 
in  the  case  of  Brown  v.  The  State  of  Maryland,  12  Wheat.,  419. 
And  the  court  there  held  that  an  article  authorized  by  a  law  of 
congress  to  be  imported,  continued  to  be  a  part  of  the  foreign  com- 
merce of  the  country  while  it  remained  in  the  hands  of  the  im- 
porter for  sale,  in  the  original  bale,  package,  or  vessel  in  which 
it  was  imported;  that  the  authority  given  to  import  necessarily 
carried  with  it  the  right  to  sell  the  imported  article  in  the  form 
and  shape  in  which  it  was  imported;  and  that  no  State,  either 
by  direct  assessment,  or  by  requiring  a  license  from  the  importer 
before  he  was  permitted  to  sell,  could  impose  any  burden  upon  him 
or  the  property  imported  beyond  what  the  law  of  congress  had 
itself  imposed;  but  that,  when  the  original  package  was  broken 
up,  for  use  or  for  retail  by  the  importer,  and  also  when  the  com- 
modity had  passed  from  his  hands  into  the  hands  of  a  purchaser, 
it  ceased  to  be  an  import,  or  a  part  of  foreign  commerce,  and  be- 
came subject  to  the  laws  of  the  State,  and  might  be  taxed  for 
state  purposes,  and  the  sale  regulated  by  the  State,  like  any  other 
property.  This  I  understand  to  be  substantially  the  decision  in 
the  case  of  Brown  v.  The  State  of  Maryland,  drawing  the  line 
between  foreign  commerce,  which  is  subject  to  the  regulation  of 
congress,  and  internal  or  domestic  commerce,  which  belongs  to 
the  States,  and  over  which  congress  can  exercise  no  control. 

I  argued  the  case  in  behalf  of  the  State,  and  endeavored  to 
maintain  that  the  law  of  Maryland,  which  required  the  importer 
as  well  as  other  dealers  to  take  out  a  license  before  he  could  s€ll, 
and  for  which  he  was  to  pay  a  certain  sum  to  the  State,  was  valid 
and  constitutional;  and  certainly  I  at  that  time  persuaded  myself 
that  I  was  right,  and  thought  the  decision  of  the  court  restricted 
the  powers  of  the  State  more  than  a  sound  construction  of  the 
constitution  of  the  United  States  would  warrant.  But  further  and 
more  mature  refiection  has  convinced  me  that  the  rule  laid  down 


LICENSE  CASES.  "267 

by  the  supreme  court  is  a  just  and  safe  one,  and  perhaps  the  best 
that  could  have  been  adopted  for  preserving  the  right  of  the 
United  States  on  the  one  hand,  and  of  the  States  on  the  other, 
and  preventing  collision  between  them.  The  question,  I  have 
already  said,  was  a  very  difficult  one  for  the  judicial  mind.  In 
the  nature  of  things,  the  line  of  division  is  in  some  degree  vague 
and  indefinite,  and  I  do  not  see  how  it  could  be  drawn  more 
accurately  and  correctly,  or  more  in  harmony  with  the  obvious 
intention  and  object  of  this  provision  in  the  constitution.  Indeed, 
goods  imported,  Avhile  they  remain  in  the  hands  of  the  importer, 
in  the  form  and  shape  in  which  they  were  brought  into  the  coun- 
try, can  in  no  just  sense  be  regarded  as  a  part  of  that  mass  of  prop- 
erty in  the  State  usually  taxed  for  the  support  of  the  state  govern- 
ment. The  immense  amount  of  foreign  products  used  and  con- 
sumed in  this  country  are  imported,  landed,  and  oifered  for  sale 
in  a  few  commercial  cities,  and  a  very  small  portion  of  them  are 
intended  or  expected  to  be  used  in  the  State  in  which  they  are 
imported.  A  great  (perhaps  the  greater)  part  imported,  in  some 
of  the  cities,  is  not  owned  or  brought  in  by  citizens  of  the  State, 
but  by  citizens  of  other  States,  or  foreigners.  And  while  they 
are  in  the  hands  of  the  importer  for  sale,  in  the  form  and  shape 
in  which  they  were  introduced,  and  in  which  they  are  intended  to 
be  sold,  they  may  be  regarded  as  merely  in  transitu,  and  on  their 
way  to  the  distant  cities,  villages,  and  country  for  which  they  are 
destined,  and  where  they  are  expected  to  be  used  and  consumed, 
and  for  the  supply  of  which  they  were  in  truth  imported.  And  a 
tax  upon  them  while  in  this  condition,  for  state  purposes,  whether 
by  direct  assessment  or,  indirectly,  by  requiring  a  license  to  sell, 
would  be  hardly  more  justifiable  in  principle  than  a  transit  duty 
upon  the  merchandise  when  passing  through  a  State.  A  tax  in  any 
shape  upon  imports  is  a  tax  on  the  consumer,  by  enhancing  the 
price  of  the  commodity.  And  if  a  State  is  permitted  to  levy  it  in 
any  form,  it  will  put  it  in  the  power  of  a  maritime  importing 
State  to  raise  a  revenue  for  the  support  of  its  own  government 
from  citizens  of  other  States,  as  certainly  and  effectually  as  if  the 
tax  was  laid  openly  and  without  disguise  as  a  duty  on  imports. 
Such  a  power  in  a  State  would  defeat  one  of  the  principal  ob- 
jects of  forming  and  adopting  the  constitution.  It  cannot  be  done 
directly,  in  the  shape  of  a  duty  on  imports,  for  that  is  expressly 
prohibited.  And  as  it  cannot  be  done  directly,  it  could  hardly 
be  a  just  and  sound  construction  of  the  constitution  which  would 
enable  a  State  to  accomplish  precisely  the  same  thing  under  an- 
other name,  and  in  a  different  form. 


308  CASES  ON   CONSTITUTIONAL   LAW. 

Undoubtedly  a  State  may  impose  a  tax  upon  its  citizens  in 
proportion  to  the  amount  they  are  respectively  worth;  and  the 
importing  merchant  is  liable  to  this  assessment  like  any  other 
citizen,  and  is  chargeable  according  to  the  amount  of  his  prop- 
erty, whether  it  consist  of  money  engaged  in  trade,  or  of  imported 
goods  which  he  proposes  to  sell,  or  any  other  property  of  which 
he  is  the  owner.  But  a  tax  of  this  description  stands  upon  a 
very  different  footing  from  a  tax  on  the  thing  imported,  while  it 
remains  a  part  of  foreign  commerce,  and  is  not  introduced  into 
the  general  mass  of  property  in  the  State.  Nor,  indeed,  can  it 
even  influence  materially  the  price  of  the  commodity  to  the  con- 
sumer, since  foreigners,  as  well  as  citizens  of  other  States,  who 
are  not  chargeable  with  the  tax,  may  import  goods  into  the  same 
place  and  offer  them  for  sale  in  the  same  market,  and  with  whom 
the  resident  merchant  necessarily  enters  into  competition. 

Adopting,  therefore,  the  rule  as  laid  down  in  Brown  v.  The 
State  of  Maryland,  12  W.,  419,  I  proceed  to  apply  it  to  the  cases 
of  Massachusetts  and  Ehode  Island.  The  laws  of  congress  regu- 
lating foreign  commerce  authorize  the  importation  of  spirits,  dis- 
tilled liquors,  and  brandy,  in  casks  or  vessels  not  containing  less 
than  a  certain  quantity,  specified  in  the  laws  upon  this  subject. 
Now,  if  the  state  laws  in  question  came  in  collision  with  those 
acta  of  Congress,  and  prevented  or  obstructed  the  importation  or 
sale  of  these  articles  by  the  importer  in  the  original  cask  or  vessel 
in  which  they  were  imported,  it  would  be  the  duty  of  this  court 
to  declare  them  void. 

It  has,  indeed,  been  suggested,  that,  if  a  State  deems  the  traffic 
in  ardent  spirits  to  be  injurious  to  its  citizens,  and  calculated  to 
introduce  immorality,  vice,  and  pauperism  into  the  State,  it  may 
constitutionally  refuse  to  permit  its  importation,  notwithstand- 
ing the  laws  of  congress;  and  that  a  State  may  do  this  upon  the 
same  principles  that  it  may  resist  and  prevent  the  introduction 
of  disease,  pestilence,  or  pauperism  from  abroad.  But  it  must  be 
remembered  that  disease,  pestilence,  and  pauperism  are  not  sub- 
jects of  commerce,  although  sometimes  among  its  attendant  evils. 
They  are  not  things  to  be  regulated  and  trafficked  in,  but  to  be 
prevented,  as  far  as  human  foresight  or  human  means  can  guard 
against  them.  But  spirits  and  distilled  liquors  are  universally 
admitted  to  be  subjects  of  ownership  and  property,  and  are  there- 
fore subjects  of  exchange,  barter,  and  traffic,  like  any  other  com- 
modity in  which  a  right  of  property  exists.  And  congress,  under 
its  general  power  to  regulate  commerce  with  foreign  nations,  may 
prescribe  what  article  of  merchandise  shall  be  admitted,  and  what 


LICENSE  CASES.  209 

excluded;  and  may  therefore  admit,  or  not,  as  it  shall  seem  best, 
the  importation  of  ardent  spirits.  And  inasmuch  as  the  laws  of 
congress  authorize  their  importation,  no  State  has  a  right  to  pro- 
hibit their  introduction. 

But  I  do  not  understand  the  law  of  Massachusetts  or  Ehode 
Island  as  interfering  with  the  trade  in  ardent  spirits  while  the 
article  remains  a  part  of  foreign  commerce,  and  is  in  the  hands  of 
the  importer  for  sale,  in  the  cask  or  vessel  in  which  the  laws  of 
congress  authorize  it  to  be  imported.  These  state  laws  act  alto- 
gether upon  the  retail  or  domestic  traffic  within  their  respective 
borders.  They  act  upon  the  article  after  it  has  passed  the  line  of 
foreign  commerce,  and  become  a  part  of  the  general  mass  of 
property  in  the  State.  These  laws  may,  indeed,  discourage  im- 
ports, and  diminish  the  price  which  ardent  spirits  would  otherwise 
bring.  But  although  a  State  is  bound  to  receive  and  to  permit 
the  sale  by  the  importer  of  any  article  of  merchandise  which  con- 
gress authorizes  to  be  imported,  it  is  not  bound  to  furnish  a 
market  for  it,  nor  to  abstain  from  the  passage  of  any  law  which  it 
may  deem  necessary  or  advisable  to  guard  the  health  or  morals 
of  its  citizens,  although  such  law  may  discourage  importation,  or 
diminish  the  profits  of  the  importer,  or  lessen  the  revenue  of  the 
general  government.  And  if  any  State  deems  the  retail  and  in- 
ternal traffic  in  ardent  spirits  injurious  to  its  citizens,  and  calcu- 
lated to  produce  idleness,  vice,  or  debauchery,  I  see  nothing  in 
the  constitution  of  the  United  States  to  prevent  it  from  regulat- 
ing and  restraining  the  traffic,  or  from  prohibiting  it  altogether, 
if  it  thinks  proper.  Of  the  wisdom  of  this  policy,  it  is  not  my 
province  or  my  purpose  to  speak.  Upon  that  subject,  each  State 
must  decide  for  itself.  I  speak  only  of  the  restrictions  which  the 
constitution  and  laws  of  the  United  States  have  imposed  upon  the 
States.  And  as  the  laws  of  Massachusetts  and  Rhode  Island  are 
not  repugnant  to  the  constitution  of  the  United  States,  and  do 
not  come  in  conflict  with  any  law  of  congress  passed  in  pursuance 
of  its  authority  to  regulate  commerce  with  foreign  nations  and 
among  the  several  States,  there  is  no  ground  upon  which  this 
court  can  declare  them  to  be  void. 

I  now  come  to  the  New  Hampshire  case,  in  which  a  different 
principle  is  involved, — the  question,  however,  arising  under  the 
same  clause  in  the  constitution,  and  depending  on  its  construction. 

The  law  of  New  Hampshire  prohibits  the  sale  of  distilled  spirits, 

in  any  quantity,  without  a  license  from  the  selectmen  of  the  town 

in  which  the  party  resides.     The  plaintiffs  in  error,  who  were 

merchants  in  Dover,  in  New  Hampshire,  purchased  a  barrel  of 

U 


210  CASES  ON  CONSTITUTIONAL  LAW. 

gin  in  Boston,  brought  it  to  Dover,  and  sold  it  in  the  cask  in  which 
it  was  imported,  without  a  license  from  the  selectmen  of  the  town. 
For  this  sale  they  were  indicted,  convicted,  and  fined,  under  the 
law  above  mentioned. 

The  power  to  regulate  commerce  among  the  several  States  is 
granted  to  congress  in  the  same  clause,  and  by  the  same  words,  as 
the  power  to  regulate  commerce  with  foreign  nations,  and  is  co- 
extensive with  it.  And,  according  to  the  doctrine  in  Brown  v. 
^Maryland,  the  article  in  question,  at  the  time  of  the  sale,  was  sub- 
ject to  the  legislation  of  congress. 

The  present  case,  however,  differs  from  Brown  v.  The  State  of 
Maryland  in  this, — that  the  former  was  one  arising  out  of  com- 
merce with  foreign  nations,  which  congress  had  regulated  by  law; 
whereas  the  present  is  a  case  of  commerce  between  two  States,  in 
relation  to  which  congress  has  not  exercised  its  power.  Some  acts 
of  congress  have  indeed  been  referred  to  in  relation  to  the  coasting 
trade.  But  they  are  evidently  intended  merely  to  prevent  smug- 
gling, and  do  not  regulate  imports  or  exports  from  one  State  to 
another.  This  case  differs  also  from  the  cases  of  Massachusetts 
and  Ehode  Island;  because,  in  these  two  cases,  the  laws  of  the 
States  operated  upon  the  articles  after  they  had  passed  beyond 
the  limits  of  foreign  commerce,  and  consequently  were  beyond  the 
control  and  power  of  congress.  But  the  law  of  New  Hampshire 
acts  directly  upon  an  import  from  one  State  to  another,  while  in 
the  hands  of  the  importer  for  sale,  and  is  therefore  a  regulation  of 
commerce,  acting  upon  the  article  while  it  is  within  the  admitted 
jurisdiction  of  the  general  government,  and  subject  to  its  control 
and  regulation. 

The  question  therefore  brought  up  for  decision  is,  whether  a 
State  is  prohibited  b}-^  the  constitution  of  the  United  States  from 
making  any  regulations  of  foreign  commerce,  or  of  commerce  with 
another  State,  although  such  regulation  is  confined  to  its  own  ter- 
ritory and  made  for  its  o^vn  convenience  or  interest,  and  does  not 
come  in  conflict  with  any  law  of  congress.  In  od:her  words,  wheth- 
er the  grant  of  power  to  congress  is  of  itself  a  prohibition  to  the 
States,  and  renders  all  state  laws  upon  the  subject  null  and  void. 
This  is  the  question  upon  which  the  case  turns;  and  I  do  not  see 
how  it  can  be  decided  upon  any  other  ground,  provided  we  adopt 
the  line  of  division  between  foreign  and  domestic  commerce  as 
marked  out  by  the  court  in  Brown  v.  The  State  of  Maryland.  I 
proceed,  therefore,  to  state  my  opinion  upon  it. 

It  is  well  known  that  upon  this  subject  a  difference  of  opinion 
has  existed,  and  still  exists,  among  the  members  of  this  court. 


LICENSE  CASES.  211 

But  with  every  respect  for  the  opinion  of  my  brethren  with  whom 
I  do  not  agree,  it  appears  to  me  to  be  very  clear,  thai  the  mere 
grant  of  power  to  the  general  government  cannot,  upon  any  just 
principles  of  construction,  be  construed  to  be  an  absolute  prohibi- 
tion to  the  exercise  of  any  power  over  the  same  subject  by  the 
States.  The  controlling  and  supreme  power  over  commerce  with 
foreign  nations  and  the  several  States  is  undoubtedly  conferred 
upon  congress.  Yet,  in  my  judgment,  the  State  may,  neverthe- 
less, for  the  safety  or  convenience  of  trade,  or  for  the  protection 
of  the  health  of  its  citizens,  make  regulations  of  commerce  for  its 
own  ports  and  harbors,  and  for  its  own  territory;  and  such  regula- 
tions are  valid  unless  they  come  in  conflict  with  a  law  of  congress. 
Such  evidently,  I  think,  was  the  construction  which  the  consti- 
tution universally  received  at  the  time  of  its  adoption,  as  appears 
from  the  legislation  of  congress  and  of  the  several  States;  and  a 
careful  examination  of  the  decisions  of  this  court  will  show,,  that, 
so  far  from  sanctioning  the  opposite  doctrine,  they  recognize  and 
maintain  the  power  of  the  States. 

The  language  in  which  the  grant  of  power  to  the  general  govern- 
ment is  made,  certainly  furnishes  no  warrant  for  a  different  con- 
struction, and  there  is  no  prohibition  to  the  States.  Neither  can 
it  be  inferred  by  comparing  the  provisions  upon  this  subject  with 
those  that  relate  to  other  powers  granted  by  the  constitution  to 
the  general  government.  On  the  contrary,  in  many  instances, 
after  the  grant  is  made,  the  constitution  ^proceeds  to  prohibit  the 
exercise  of  the  same  power  by  the  States  in  express  terms;  in 
some  cases  absolutely,  in  others  without  the  consent  of  congress. 
And  if  it  was  intended  to  forbid  the  States  from  making  any  reg- 
ulations of  commerce,  it  is  difficult  to  account  for  the  omission  to 
prohibit  it,  when  that  prohibition  has  been  so  carefully  and  dis- 
tinctly inserted  in  relation  to  other  powers,  where  the  action  of 
the  State  over  the  same  subject  was  intended  to  be  entirely  ex- 
cluded. But  if,  as  I  think,  the  framers  of  the  constitution  (know- 
ing that  a  multitude  of  minor  regulations  must  be  necessary, 
which  congress  amid  its  great  concerns  could  never  find  time  to 
consider  and  provide)  intended  merely  to  make  the  power  of  the 
federal  government  supreme  upon  this  subject  over  that  of  the 
States,  then  the  omission  of  any  prohibition  is  accounted  for,  and 
is  consistent  with  the  whole  instrument.  The  supremacy  of  the 
laws  of  congress,  in  cases  of  collision  with  state  laws,  is  secured 
in  the  article  which  declares  that  the  laws  of  congress,  passed  in 
pursuance  of  the  powers  granted,  shall  be  the  supreme  law;  and 
it  is  only  where  both  governments  may  legislate  on  the  same  sub- 


212  CASES  ON  CONSTITUTIONAL  LAW. 

ject  that  this  article  may  operate.  For  if  the  mere  grant  of  power 
to  the  general  government  was  in  itself  a  prohibition  to  the  States, 
there  would  seem  to  be  no  necessity  for  providing  for  the  suprem- 
acy of  the  laws  of  congress,  as  all  state  laws  upon  the  subject 
would  be  ipso  facto  void,  and  there  could,  therefore,  be  no  such 
thing  as  conflicting  laws,  nor  any  question  about  the  supremacy  of 
conflicting  legislation.  It  is  only  where  both  may  legislate  on  the 
subject  that  the  question  can  arise. 

I  have  said  that  the  legislation  of  congress  and  the  States  has 
conformed  to  this  construction  from  the  foundation  of  the  gov- 
ernment. This  is  sufficiently  exemplified  in  the  laws  in  relation 
to  pilots  and  pilotage,  and  the  health  and  quarantine  laws. 

In  relation  to  the  first,  they  are  admitted  on  all  hands  to  be- 
long to  foreign  commerce,  and  to  be  subject  to  the  regulations  of 
congress,  under  the  grant  of  power  of  which  we  are  speaking. 
Yet  they  have  been  continually  regulated  by  the  maritime  States, 
as  fully  and  entirely  since  the  adoption  of  the  constitution  as 
they  were  before;  and  there  is  but  one  law  of  congress^  making 
any  specific  regulation  upon  the  subject,  and  that  passed  as  late 
as  1837,  and  intended,  as  it  is  understood,  to  alter  only  a  single 
provision  of  the  Xew  York  law,  leaving  the  residue  of  its 
provisions  entirely  untouched.  It  is  true,  that  the  act  of 
1789^  provides  that  pilots  shall  continue  to  be  regulated  by 
the  laws  of  the  respective  States  then  in  force,  or  which 
may  thereafter  be  passed,  until  congress  shall  make  provision  on 
the  subject.  And  undoubtedly  congress  had  the  power,  by  assent- 
ing to  the  state  laws  then  in  force,  to  make  them  its  own,  and 
thus  make  the  previous  regulations  of  the  States  the  regulations 
of  the  general  government.  But  it  is  equally  clear,  that,  as  to  all 
future  laws  by  the  States,  if  the  constitution  deprived  them  of  the 
power  of  making  any  regulations  on  the  subject,  an  act  of  con- 
gress could  not  restore  it.  For  it  will  hardly  be  contended  that 
an  act  of  congress  can  alter  the  constitution,  and  confer  upon  a 
State  a  power  which  the  constitution  declares  it  shall  not  possess. 
And  if  the  grant  of  power  to  the  United  States  to  make  regula- 
tions of  commerce  is  a  prohibition  to  the  States  to  make  any  regu- 
lation upon  the  subject,  congress  could  no  more^  restore  to  the 
States  the  power  of  which  it  was  thus  deprived,  than  it  could 
authorize  them  to  coin  money,  or  make  paper  money  a  tender 
in  the  payment  of  debts,  or  to  do  any  other  act  forbidden  to  them 
by  the  constitution.     Every  pilot  law  in  the  commercial  States 

1 5  Stats,  at  Large,  153.  2  1  ibid.,  54. 


LICENSE  CASES.  S13 

has,  it  is  believed,  been  either  modified  or  passed  since  the  act  of 
1789  adopted  those  then  in  force;  and  the  provisions  since  made 
are  all  void,  if  the  restriction  on  the  power  of  the  States  now  con- 
tended for  should  be  maintained;  and  the  regulations  made,  the 
duties  imposed,  the  securities  required,  and  penalties  inflicted  by 
these  various  state  laws  are  mere  nullities,  and  could  not  be  en- 
forced in  a  court  of  justice.  It  is  hardly  necessary  to  speak  of  the 
mischiefs  which  such  a  construction  would  produce  to  those  who 
are  engaged  in  shipping,  navigation,  and  commerce.  Up  to  this 
time  their  validity  has  never  been  questioned.  On  the  contrary, 
they  have  been  repeatedly  recognized  and  upheld  by  the  decisions 
of  this  court;  and  it  will  be  difficult  to  show  how  this  can  be 
done,  except  upon  the  construction  of  the  constitution  which  I 
am  now  maintaining.  So,  also,  in  regard  to  health  and  quaran- 
tine laws.  They  have  been  continually  passed  by  the  States  ever 
since  the  adoption  of  the  constitution,  and  the  power  to  pass  them 
recognized  by  acts  of  congress,  and  the  revenue  officers  of  the 
general  government  directed  to  assist  in  their  execution.  Yet  all 
of  these  health  and  quarantine  laws  are  necessarily,  in  some  de- 
gree, regulations  of  foreign  commerce  in  the  ports  and  harbors 
of  the  State.  They  subject  the  ship,  and  cargo,  and  crew  to  the 
inspection  of  a  health  officer  appointed  by  the  State;  they  prevent 
the  crew  and  cargo  from  landing  until  the  inspection  is  made, 
and  destroy  the  cargo  if  deemed  dangerous  to  health.  And  dur- 
ing all  this  time  the  vessel  is  detained  at  the  place  selected  for  the 
quarantine  ground  by  the  state  authority.  The  expenses  of  these 
precautionary  measures  are  also  usually,  and  I  believe  universally, 
charged  upon  the  master,  the  owner,  or  the  ship,  and  the  amount 
regulated  by  the  state  law,  and  not  by  congress.  Now,  so  far  as 
these  laws  interfere  with  shipping,  navigation,  or  foreign  com- 
merce, or  impose  burdens  upon  either  of  them,  they  are  unques- 
tionably regulations  of  commerce.  Yet,  as  I  have  already  said, 
the  power  has  been  continually  exercised  by  the  States,  has  been 
continually  recognized  by  congress  ever  since  the  adoption  of  the 
constitution,  and  constantly  affirmed  and  supported  by  this  court 
whenever  the  subject  came  before  it. 

The  decisions  of  this  court  will,  also,  in  my  opinion,  when  care- 
fully examined,  be  found  to  sanction  the  construction  I  am  main- 
taining. It  is  not  my  purpose  to  refer  to  all  of  the  cases  in  which 
this  question  has  been  spoken  of,  but  only  to  the  principal  and 
leading  ones;   and, — 

First,  to  Gibbons  v.  Ogden,  9  Wheat.,  1,  because  this  is  the 
case  usually  referred  to  and  relied  on  to  prove  the  exclusive  power 


214  CASES  ON  CONSTITUTIONAL  LAW. 

of  congress  and  the  prohibition  to  the  States.  It  is  true  that  one 
or  two  passages  in  that  opinion,  taken  by  themselves,  and  de- 
tached from  the  context,  would  seem  to  countenance  this  doctrine. 
And,  indeed,  it  has  always  appeared  to  me  that  this  controversy 
has  mainly  arisen  out  of  that  case,  and  that  this  doctrine  of  the 
exclusive  power  of  congress,  in  the  sense  in  which  it  is  now  con- 
tended for,  is  comparatively  a  modem  one,  and  was  never  seriously 
put  forward  in  any  case  until  after  the  decision  of  Gibbons  v. 
Ogden,  although  it  has  been  abundantly  discussed  since.  Still, 
it  seems  to  me  to  be  clear,  upon  a  careful  examination  of  that  case, 
that  the  expressions  referred  to  do  not  warrant  the  inference 
drawn  from  them,  and  were  not  used  in  the  sense  imputed  to 
them;  and  that  the  opinion  in  that  case,  when  taken  altogether 
and  with  reference  to  the  subject-matter  before  the  court,  estab- 
lishes the  doctrine  that  a  State  may,  in  the  execution  of  its  powers 
of  internal  police,  make  regulations  of  foreign  commerce;  and  that 
such  regulations  are  valid,  unless  they  come  into  collision  with  a 
law  of  congress.  Upon  examining  that  opinion,  it  will  be  seen 
that  the  court,  when  it  uses  the  expressions  which  are  supposed 
to  countenance  the  doctrine  of  exclusive  power  in  congress,  is  com- 
menting upon  the  argument  of  counsel  in  favor  of  equal  powers 
on  this  subject  in  the  States  and  the  general  government,  where 
neither  party  is  bound  to  yield  to  the  other;  and  is  drawing  the 
distinction  between  cases  of  concurrent  powers  and  those  in  which 
the  supreme  or  paramount  power  was  granted  to  congress.  It 
therefore  very  justly  speaks  of  the  States  as  exercising  their  own 
powers  in  laying  taxes  for  state  purposes,  although  the  same  thing 
is  taxed  by  congress;  and  as  exercising  the  powers  granted  to 
congress  when  they  make  regulations  of  commerce.  In  the  first 
case,  the  state  power  is  concurrent  with  that  of  the  general  gov- 
ernment,— is  equal  to  it,  and  is  not  bound  to  yield.  In  the  second, 
it  is  subordinate  and  subject  to  the  superior  and  controlling  power 
conferred  upon  congress. 

Moreover  the  court  distinctly  admits,  on  pages -205,  206,  that 
a  State  may,  in  the  execution  of  its  police  and  health  laws,  make 
regulations  of  commerce,  but  which  congress  may  control.  It  is 
very  clear,  that,  so  far  as  these  regulations  are  merely  internal, 
and  do  not  operate  on  foreign  commerce,  or  commerce  among  the 
States,  they  are  altogether  independent  of  the  power  of  the  gen- 
eral government  and  cannot  be  controlled  by  it.  The  power  of 
control,  therefore,  which  the  court  speaks  of,  presupposes  that 
they  are  regulations  of  foreign  commerce,  or  commerce  among  the 
States.    And  if  a  State,  with  a  view  to  its  police  or  health,  may 


LICENSE  CASES.  215 

make  valid  regulations  of  commerce  which  yet  fall  within  the 
controlling  power  of  the  general  government,  it  follows  that  the 
State  is  not  absolutely  prohibited  from  making  regulations  of  for- 
eign commerce  within  its  own  territorial  limits,  provided  they  do 
not  come  in  conflict  with  the  laws  of  congress. 

It  has  been  said,  indeed,  that  quarantine  and  health  laws  are 
passed  by  the  States,  not  by  virtue  of  a  power  to  regulate  com- 
merce, but  by  virtue  of  their  police  powers,  and  in  order  to  guard 
the  lives  and  health  of  their  citizens.  This,  however,  cannot  be 
said  of  the  pilot  laws,  which  are  yet  admitted  to  be  equally  valid. 
But  what  are  the  police  powers  of  a  State?  They  are  nothing 
more  or  less  than  the  powers  of  government  inherent  in  every 
sovereignty  to  the  extent  of  its  dominions.  And  whether  a  State 
passes  a  quarantine  law,  or  a  law  to  punish  offenses,  or  to  establish 
courts  of  justice,  or  requiring  certain  instruments  to  be  recorded, 
or  to  regulate  commerce  within  its  own  limits,  in  every  case  it 
exercises  the  same  power;  that  is  to  say,  the  power  of  sover- 
eignty, the  power  to  govern  men  and  things  within  the  limits  of 
its  dominion.  It  is  by  virtue  of  this  power  that  it  legislates;  and 
its  authority  to  make  regulations  of  commerce  is  as  absolute  as 
its  power  to  pass  health  laws,  except  in  so  far  as  it  has  been 
restricted  by  the  constitution  of  the  United  States.  And  when 
the  validity  of  a  state  law  making  regulations  of  commerce  is 
drawn  into  question  in  a  judicial  tribunal,  the  authority  to  pass 
it  cannot  be  made  to  depend  upon  the  motives  that  may  be  sup- 
posed to  have  influenced  the  legislature,  nor  can  the  court  inquire 
whether  it  was  intended  to  guard  the  citizens  of  the  State  from 
pestilence  and  disease,  or  to  make  regulations  of  commerce  for  the 
interest  and  convenience  of  trade. 

Upon  this  question,  the  object  and  motive  of  the  State  are  of 
no  importance,  and  cannot  influence  the  decision.  It  is  a  ques- 
tion of  power.  Are  the  States  absolutely  prohibited  by  the  con- 
stitution from  making  any  regulations  of  foreign  commerce?  If 
they  are,  then  such  regulations  are  null  and  void,  whatever  may 
have  been  the  motive  of  the  State,  or  whatever  the  real  object  of 
the  law;  and  it  requires  no  law  of  congress  to  control  or  annul 
them.  Yet  the  case  of  Gibbons  v.  Ogden,  9  Wheat.,  1,  unques- 
tionably affirms  that  such  regulations  may  be  made  by  a  State, 
subject  to  the  controlling  power  of  congress.  And  if  this  may  be 
done,  it  necessarily  follows  that  the  grant  of  power  to  the  federal 
government  is  not  an  absolute  and  entire  prohibition  to  the  States, 
but  merely  confers  upon  congress  the  superior  and  controlling 
power.     And  to   expound  the  particular  passages   hereinbefore 


216  CASES  ON  CONSTITUTIONAL  LAW. 

mentioned  in  the  manner  insisted  upon  by  those  who  contend  for 
the  prohibition,  would  be  to  make  different  parts  of  that 
opinion  inconsistent  with  each  other, — an  error  which  I  am  quite 
sure  no  one  will  ever  impute  to  the  very  eminent  jurist  by  whom 
the  opinion  was  delivered. 

And  that  the  meaning  of  the  court  in  the  case  of  Gibbons  v. 
Ogden  was  such  as  I  have  insisted  on,  is,  I  think,  conclusively 
proved  by  the  case  of  Willson  et  al.  v.  The  Blackbird  Creek  Marsh 
Company,  2  Pet.,  251,  252.  In  that  case,  a  dam  authorized  by 
a  state  law  had  been  erected  across  a  navigable  creek,  so  as  to 
obstruct  the  commerce  above  it.  And  the  validity  of  the  state 
law  was  objected  to,  on  the  ground  that  it  was  repugnant  to  the 
constitution  of  the  United  States,  being  a  regulation  of  commerce. 
But  the  court  says:  "The  repugnancy  of  the  law  of  Delaware  to 
the  constitution  is  placed  entirely  on  its  repugnancy  to  the  power 
to  regulate  commerce  with  foreign  nations,  and  among  the  several 
States;  a  power  which  has  not  been  so  exercised  as  to  affect  the 
question,"  and  then  proceeds  to  decide  that  the  law  of  Delaware 
could  not  "be  considered  as  repugnant  to  the  power  to  regulate 
commerce  in  its  dormant  state,  or  as  being  in  conflict  with  any 
law  passed  on  the  subject." 

The  passages  I  have  quoted  show  that  the  validity  of  the  state 
law  was  maintained  because  it  was  not  in  conflict  with  a  law  of 
congress,  although  it  was  confessedly  within  the  limits  of  the 
power  granted.,  And  it  is  worthy  of  remark,  that  the  counsel  for 
the  plaintiff  in  error  in  that  case  relied  upon  Gibbons  v.  Ogden, 
as  conclusive  authority  to  show  the  unconstitutionality  of  the 
state  law,  no  doubt  placing  upon  the  passages  I  have  mentioned 
the  construction  given  to  them  by  those  who  insist  upon  the 
exclusiveness  of  the  power.  This  case,  therefore,  was  brought 
fully  to  the  attention  of  the  court.  And  the  decision  in  the  last 
case,  and  the  grounds  on  which  it  was  placed,  in  my  judgment, 
show  most  clearly  what  was  intended  in  Gibbons  v.  Ogden;  and 
that  in  that  case,  as  w^ell  as  in  the  case  of  Willson  et  al.  v.  The 
Blackbird  Creek  Marsh  Company,  the  court  held  that  a  state  law 
was  not  invalid  merely  because  it  made  regulations  of  commerce, 
but  that  its  invalidity  depended  upon  its  repugnancy  to  a  law  of 
congress  passed  in  pursuance  of  the  power  granted.  And  it  is 
worthy,  also,  of  remark,  that  the  opinion  in  both  of  these  cases 
was  delivered  by  Chief  Justice  Marshall,  and  I  consider  his  opin- 
ion in  the  latter  one  as  an  exposition  of  what  he  meant  to  decide 
in  the  former. 

In  the  case  of  the  City  of  New  York  v.  Miln,  11  Pet.,  13Q,  the 


LICENSE  CASES.  217 

question  as  to  the  power  of  the  States  upon  this  subject  was  very 
fully  discussed  at  the  bar.  But  no  opinion  was  expressed  upon 
it  by  the  court,  because  the  case  did  not  necessarily  involve  it, 
and  there  was  great  diversity  of  opinion  on  the  bench.  Conse- 
quently the  point  was  left  open,  and  has  never  been  decided  in 
any  subsequent  case  in  this  court. 

For  my  own  part,  I  have  always  regarded  the  cases  of  Gibbons 
V.  Ogden,  9  Wheat.,  1,  and  Willson  et  al.  v.  The  Blackbird  Creek 
Marsh  Company,  2  Pet.,  245,  as  abundantly  sufficient  to  sanction 
the  construction  of  the  constitution  which  in  my  judgment  is 
the  true  one.  Their  correctness  has  never  been  questioned;  and 
I  forbear,  therefore,  to  remark  on  the  other  cases  in  which  this 
subject  has  been  mentioned  and  discussed. 

It  may  be  well,  however,  to  remark,  that  in  analogous  cases, 
where,  by  the  constitution  of  the  United  States,  power  over  a 
particular  subject  is  conferred  on  congress  without  any  prohibition 
to  the  States,  the  same  rule  of  construction  has  prevailed.  Thus 
in  the  case  of  Houston  v.  Moore,  5  Wheat.,  1,  it  was  held  that 
the  grant  of  power  to  the  federal  government  to  provide  for  organ- 
izing, arming,  and  disciplining  the  militia,  did  not  preclude  the 
States  from  legislating  on  the  same  subject,  provided  the  law  of 
the  State  was  not  repugnant  to  the  law  of  congress.  And  every 
State  in  the  Union  has  continually  legislated  on  the  subject,  and 
I  am  not  aware  that  the  validity  of  these  laws  has  ever  been  dis- 
puted, unless  they  came  in  conflict  with  the  law  of  congress. 

The  same  doctrine  was  held  in  the  case  of  Sturges  v.  Crownin- 
shield,  4  Wheat.,  196,  under  the  clause  in  the  constitution  which 
gives  to  congress  the  power  to  establish  uniform  laws  on  the  sub- 
ject of  bankruptcies  throughout  the  United  States. 

And  in  the  case  of  Chirac  v.  Chirac,  2  Wheat.,  269,  which  arose 
under  the  grant  of  power  to  establish  a  uniform  rule  of  natural- 
ization, where  the  court  speak  of  the  power  of  congress  as  exclu- 
sive, they  are  evidently  merely  sanctioning  the  argument  of  coun- 
sel stated  in  the  preceding  sentence,  which  placed  the  invalidity 
of  the  naturalization  under  the  law  of  Maryland,  not  solely  upon 
the  grant  of  power  in  the  constitution,  but  insisted  that  the  Mary- 
land law  was  "virtually  repealed  by  the  constitution  of  the  United 
States,  and  the  act  of  naturalization  enacted  by  congress."  Un- 
doubtedly it  was  so  repealed,  and  the  opposing  counsel  in  the  case 
did  not  dispute  it.  For  the  law  of  the  United  States  covered 
every  part  of  the  Union,  and  there  could  not,  therefore,  by  possi- 
bility, be  a  state  law  which  did  not  come  in  conflict  with  it.  And, 
indeed,  in  this  case,  it  might  well  have  been  doubted  whether  the 


218  CASES  ON  CONSTITUTIONAL  LAW. 

grant  in  the  constitution  itself  did  not  abrogate  the  power  of 
the  States,  inasmuch  as  the  constitution  also  provided  that  the 
citizens  of  each  State  should  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  in  the  several  States;  and  it  would  seem 
to  be  hardly  consistent  with  this  provision  to  allow  any  one  State, 
after  the  adoption  of  the  constitution,  to  exercise  a  power  which, 
if  it  operated  at  all,  must  operate  beyond  the  territory  of  the  State, 
and  compel  other  States  to  acknowledge  as  citizens  those  whom  it 
might  not  be  willing  to  receive. 

In  referring  to  the  opinions  of  those  who  sat  here  before  us, 
it  is  but  justice  to  them,  in  expounding  their  language,  to  keep 
in  mind  the  character  of  the  case  they  were  deciding.  And  this 
is  more  especially  necessary  in  cases  depending  upon  the  construc- 
tion of  the  constitution  of  the  United  States,  where,  from  the 
great  public  interests  which  must  always  be  involved  in  such  ques- 
tions, this  court  have  usually  deemed  it  advisable  to  state  very 
much  at  large  the  principles  and  reasoning  upon  which  their  judg- 
ment was  founded,  and  to  refer  to  and  comment  on  the  leading 
points  made  by  the  counsel  on  either  side  in  the  argument.  And 
I  am  not  aware  of  any  instance  in  which  the  court  have  spoken 
of  the  grant  of  power  to  the  general  government  as  excluding  all 
State  power  over  the  subject,  unless  they  were  deciding  a  case 
where  the  power  had  been  exercised  by  congress,  and  a  state  law 
came  in  conflict  with  it.  In  cases  of  this  kind,  the  power  of  Con- 
gress undoubtedly  excludes  and  displaces  that  of  the  State;  be- 
cause, wherever  there  is  collision  between  them,  the  law  of  con- 
gress is  supreme.  And  it  is  in  this  sense  only,  m  my  judgment, 
that  it  has  been  spoken  of  as  exclusive  in  the  opinions  of  the 
court  to  which  I  have  referred.  The  case  last  mentioned  is  a 
striking  example;  for  there  the  language  of  the  court,  affirming 
in  the  broadest  terms  the  exclusiveness  of  the  power,  evidently 
refers  to  the  argument  of  counsel  stated  in  the  preceding  sen- 
tence. 

Upon  the  whole,  therefore,  the  law  of  New  Hampshire  is,  in  my 
judgment,  a  valid  one.  For,  although  the  gin  sold  was  an  import 
from  another  State,  and  congress  have  clearly  the  power  to  reg- 
ulate such  importations,  under  the  grant  of  power  to  regulate  com- 
merce among  the  several  States,  yet,  as  congress  has  made  no 
regulation  on  the  subject,  the  traffic  in  the  article  may  be  lawfully 
regulated  by  the  State  as  soon  as  it  is  landed  in  its  territory,  and 
a  tax  imposed  upon  it,  or  a  license  required,  or  the  sale  altogether 
prohibited,  according  to  the  policy  which  the  State  may  suppose 
to.be  its  interest  or  duty  to  pursue. 


THE    PASSENGER    CASES.  219 

The  judgment  of  the  state  courts  ought,  therefore,  in  my  opin- 
ion, to  be  affirmed  in  each  of  the  three  cases  before  us.     .     .     . 

[Messrs.  Justices  McLeax,  Cateon,  Daniel,  Woodbuey, 
and  Geiee  also  gave  opinions.  Me.  Justice  Nelson  concurred 
in  the  opinions  of  the  Chief  Justice  and  of  Mr.  Justice 
Catron]. 


THE  PASSENGEE  CASES. 

SMITH  V.  TURNER.     NORRIS  v.  BOSTON. 

7  Howard,  283.    Decided  1848. 

There  were  writs  of  error,  the  first  to  the  court  for  the  trial 
of  impeachments,  &c.,  of  the  State  of  New  York,  the  second,  to 
the  supreme  judicial  court  of  the  State  of  Massachusetts,  under 
the  25th  section  of  the  judiciary  act  of  1789,  1  Stats,  at  Large, 
85.  The  cases  will  be  found  succinctly  but  clearly  stated  in  the 
opinions  of  Justice  McLean  ...  of  Justice  Catron  .  .  . 
and  of  Justice  Grier.     ... 

Smith   v.    Turner, 

McLean,  J.  Lender  the  general  denomination  of  health  laws 
in  New  York,  and  by  the  7th  section  of  an  act  relating  to  the 
marine  hospital,  it  is  provided,  that  "the  health  commissioners 
shall  demand  and  be  entitled  to  receive,  and  in  case  of  neglect 
or  refusal  to  pay,  shall  sue  for  and  recover,  in  his  name  of  office, 
the  following  sums  from  the  master  of  every  vessel  that  shall 
arrive  in  the  port  of  New  York,  namely: — 

"1.  From  the  master  of  every  vessel  from  a  foreign  port,  for 
himself  and  each  cabin  passenger,  $1.50;  for  each  steerage  passen- 
ger, mate,  sailor,  or  mariner,  $1. 

"2.  From  the  master  of  each  coasting  vessel,  for  each  person 
on  board,  $0.25;  but  no  coasting  vessel  from  the  States  of  New 
Jersey,  Connecticut,  and  Rhode  Island  shall  pay  for  more  than 
one  voyage  in  each  month,  computing  from  the  first  voyage  in 
each  year." 

The  8th  section  provides  that  the  money  so  received,  shall  be 
denominated  "hospital  moneys."    And  the  9th  section  gives  "each 


220  CASES  ON  CONSTITUTIONAL  LAW. 

master  paying  hospital  moneys,  a  right  to  demand  and  recover 
from  each  person  the  sum  paid  on  his  account."  The  10th  sec- 
tion declares  any  master,  who  shall  fail  to  make  the  above  pay- 
ments within  twenty-four  hours  after  the  arrival  of  his  vessel  in 
the  port,  shall  forfeit  the  sum  of  $100.  By  the  11th  section,  the 
commissioners  of  health  are  required  to  account  annually  to  the 
comptroller  of  the  State  for  all  moneys  received  by  them  for  the 
use  of  the  marine  hospital;  "and  if  such  money  shall,  in  any  one 
year,  exceed  the  sum  necessary  to  defray  the  expenses  of  their  trust, 
including  their  own  salaries,  and  exclusive  of  such  expenses  as 
are  to  be  borne  and  paid  as  a  part  of  the  contingent  charges  of 
the  city  of  New  York,  they  shall  pay  over  such  surplus  to  the 
treasurer  of  the  Society  for  the  Reformation  of  Juvenile  Delin- 
quents in  the  city  of  New  York,  for  the  use  of  the  society." 

The  plaintiff  in  error  was  master  of  the  British  ship  Henry  Bliss, 
which  vessel  touched  at  the  port  of  Xew  York  in  the  month  of 
June,  1841,  and  landed  290  steerage  passengers.  The  defendant 
in  error  brought  an  action  of  debt  on  the  statute  against  the 
plaintiff,  to  recover  $1  for  each  of  the  above  passengers.  A  de- 
murrer was  filed,  on  the  ground  that  the  statute  of  Xew  York  was 
a  regulation  of  commerce,  and  in  conflict  with  the  constitution 
of  the  United  States.  The  supreme  court  of  the  State  overruled 
the  demurrer,  and  the  court  of  errors  affirmed  the  judgment.  This 
brings  before  this  court,  under  the  25th  section  of  the  judiciary 
act,  the  constitutionality  of  the  New  York  statute. 

I  will  consider  the  case  under  two  general  heads: — 

1.  Is  the  power  of  congress  to  regulate  commerce  an  exclusive 
power? 

2.  Is  the  statute  of  New  York  a  regulation  of  commerce? 
[In  answer  to  the  first  question  citations  are  given  from  Holmes 

V.  Jennison,  14  Pet.,  570;  Houston  v.  Moore,  5  Wheat.,  23;  Gib- 
bons v.  Ogden,  9  Wheat.,  196;  Brown  v.  Maryland,  12  Wheat., 
446;  New  York  v.  Miln,  11  Pet.,  158;  Sturges  v.  Crowninshield, 
4  Wheat.,  122;  Wilson  v.  The  Blackbird  Creek  Marsh  Co.,  2  Pet., 
250,  and  The  Federalist,  No.  32.] 

Whether  I  consider  the  nature  and  object  of  the  commercial 
power,  the  class  of  powers  with  which  it  is  placed,  the  decision 
of  this  court  in  the  case  of  Gibbons  v.  Ogden,  9  Wheat.,  1,  reit- 
erated in  Brown  v.  The  State  of  Maryland,  12  Wheat.,  419,  and 
often  reasserted  by  Mr.  Justice  Story,  who  participated  in  those 
decisions,  I  am  brought  to  the  conclusion  that  the  power  "to  reg- 
ulate commerce  with  foreign  nations,  and  among  the  several 
States,"  by  the  constitution,  is  exclusively  vested  in  congress. 


THE    PASSENGER    CASES.  231 

I  come  now  to  inquire,  under  the  second  general  proposition,  Is 
the  statute  of  New  York  a  regulation  of  foreign  commerce? 

All  commercial  action  within  the  limits  of  a  State,  and  which 
does  not  extend  to  any  other  State  or  foreign  country,  is  exclu- 
sively under  state  regulation.  Congress  have  no  more  power  to 
control  this  than  a  State  has  to  regulate  commerce  "with  foreign 
nations  and  among  the  several  States."  And  yet  Congress  may 
tax  the  property  within  a  State,  of  every  description,  owned  by  its 
citizens,  on  the  basis  provided  in  the  constitution,  the  same  as  a 
State  may  tax  it.  But  if  congress  should  impose  a  tonnage  duty 
on  vessels  which  ply  between  ports  within  the  same  State,  or 
require  such  vessels  to  take  out  a  license,  or  impose  a  tax  on  per- 
sons transported  in  them,  the  act  would  be  unconstitutional  and 
void.  But  foreign  commerce  and  commerce  among  the  several 
States,  the  regulation  of  which,  with  certain  constitutional  ex- 
ceptions, is  exclusively  vested  in  congress,  no  State  can  regulate. 

In  giving  the  commercial  power  to  congress,  the  States  did 
not  part  with  that  power  of  self-preservation  which  must  be  in- 
herent in  every  organized  community.  They  may  guard  against 
the  introduction  of  anything  which  may  corrupt  the  morals,  or  en- 
danger the  health  or  lives  of  their  citizens.  Quarantine  or  health 
laws  have  been  passed  by  the  States,  and  regulations  of  police  for 
their  protection  and  welfare.  The  inspection  laws  of  a  State 
apply  chiefly  to  exports,  and  the  State  may  lay  duties  and  imposts 
on  imports  or  exports,  to  pay  the  expense  of  executing  those  laws. 
But  a  State  is  limited  to  what  shall  be  "absolutely  necessary"  for 
that  purpose.  And  still  further  to  guard  against  the  abuse  of 
this  power,  it  is  declared  that  "the  net  produce  of  all  duties  and 
imposts  laid  by  a  State  on  imports  or  exports,  shall  be  for  the 
use  of  the  treasury  of  the  United  States;  and  all  such  laws  shall 
be  subject  to  the  revision  and  control  of  congress." 

The  cautious  manner  in  which  the  exercise  of  this  commercial 
power  by  a  State  is  guarded,  shows  an  extreme  jealousy  of  it  by 
the  convention;  and  no  doubt  the  hostile  regulations  of  commerce 
by  the  States,  under  the  confederation,  had  induced  this  jealousy, 
No  one  can  read  this  provision,  and  the  one  which  follows  it  in 
relation  to  tonnage  duties,  without  being  convinced  that  they 
cover,  and  were  intended  to  cover,  the  entire  subject  of  foreign 
commerce.  A  criticism  on  the  term  "import,"  by  which  to  limit 
the  obvious  meaning  of  this  paragraph,  is  scarcely  admissible  in 
construing  so  grave  an  instrument. 

Commerce  is  defined  to  be  "an  exchange  of  commodities."  But 
this  definition  does  not  convey  the  full  meaning  of  the  term.     It 


222  CASES  ON  CONSTITUTIONAL  LAW. 

includes  "navigation  and  intercourse."  That  the  transportation 
of  passengers  is  a  part  of  commerce,  is  not  now  an  open  question. 
In  Gibbons  v.  Ogden,  this  court  say:  "No  clear  distinction  is 
perceived  between  the  powers  to  regulate  vessels  in  transporting 
men  for  hire,  and  property  for  hire."  The  provision  of  the  consti- 
tution, that  "the  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  congress  prior  to  the  year  1808,"  is  a  restric- 
tion on  the  general  power  of  congress  to  regulate  commerce.  In 
reference  to  this  clause,  this  court  say,  in  the  above  case:  "This 
section  proves  that  the  power  to  regulate  commerce  applies  equally 
to  the  regulation  of  vessels  employed  in  transporting  men  who 
pass  from  place  to  place  voluntarily,  and  to  those  who  pass  invol- 
untarily." 

To  encourage  foreign  emigration  was  a  cherished  policy  of  this 
country  at  the  time  the  constitution  was  adopted.  As  a  branch 
of  commerce,  the  transportation  of  passengers  has  always  given 
a  profitable  employment  to  our  ships,  and,  within  a  few  years  past, 
has  required  an  amount  of  tonnage  nearly  equal  to  that  of  im- 
ported merchandise. 

is  this  great  branch  of  our  commerce  left  open  to  state  regu- 
lation on  the  ground  that  the  prohibition  refers  to  an  import, 
and  a  man  is  not  an  import? 

Pilot  laws,  enacted  by  the  different  States,  have  been  referred 
to  as  commercial  regulations.  That  these  laws  do  regulate  com- 
merce, to  a  certain  extent,  is  admitted;  but  from  what  authority 
do  they  derive  their  force?  Certainly,  not  from  the  States.  .  By 
the  fourth  section  of  the  act  of  the  7th  of  August,  1789,^  it  is 
provided:  "That  all  pilots  in  the  bays,  inlets,  rivers,  harbors,  and 
ports  of  the  United  States,  shall  continue  to  be  regulated  in 
conformity  with  the  existing  laws  of  the  States  respectively,  where- 
in such  pilots  may  be,  or  with  such  laws  as  the  States  may  re- 
spectively hereafter  enact  for  the  purpose,  until  further  legisla- 
tive provision  shall  be  made  by  congress."  These  State  laws,  by 
adoption,  are  the  laws  of  congress,  and  as  such,  effect  is  given 
to  them.  So  the  laws  of  the  States  which  regulate  the  practice 
of  their  courts,  are  adopted  by  congress  to  regulate  the  practice 
of  the  federal  courts.  But  these  laws,  so  far  as  they  are  adopted, 
are  as  much  the  laws  of  the  United  States,  and  it  has  often  been 
so  held,  as  if  they  had  been  specifically  enacted  by  congress.  A 
repeal  of  them  by  the  State,  unless  future  changes  in  the  acts  be 

1 1  Stats,  at  Large,  54. 


THE    PASSENGER  "  CASES.  223 

also  adopted,  does  not  affect  their  force  in  regard  to  federal  action. 
In  the  above  instances,  it  has  been  deemed  proper  for  con- 
gress to  legislate,  by  adopting  the  law  of  the  States.  And  it  is 
not  doubted  that  this  has  been  found  convenient  to  the  public 
service.  Pilot  laws  were  in  force  in  every  commercial  State  on  the 
seaboard  when  the  constitution  was  adopted;  and  on  the  intro- 
duction of  a  new  system,  it  was  prudent  to  preserve,  as  far  as 
practicable,  the  modes  of  proceeding  with  which  the  people  of 
the  different  States  were  familiar.  In  regard  to  pilots,  it  was 
not  essential  that  the  laws  should  be  uniform, — their  duties  could 
be  best  regulated  by  an  authority  acquainted  with  the  local  cir- 
cumstances under  which  they  were  performed;  and  the  fact  that 
ihe  same  system  is  continued,  shows  that  the  public  interest  has 
/required  no  change. 

/  No  one  has  yet  drawn  the  line  clearly,  because,  perhaps,  no  one 
/  can  draw  it,  between  the  commercial  power  of  the  Union,  and  the 
municipal  power  of  a  State.  Numerous  cases  have  arisen,  involv- 
ing these  powers,  which  have  been  decided,  but  a  rule  has  neces- 
sarily been  observed  as  applicable  to  the  circumstances  of  each 
case.  And  so  must  every  case  be  adjudged,  A  State  cannot 
regulate  foreign  commerce,  but  it  may  do  many  things  which  more 
or  less  affect  it.  It  may  tax  a  ship  or  other  vessel  used  in  com- 
merce the  same  as  other  property  owned  by  its  citizens,  A  State 
may  tax  the  stages  in  which  the  mail  is  transported;  but  this  does 
not  regulate  the  conveyance  of  the  mail  any  more  than  taxing  a 
ship  regulates  commerce.  And  yet,  in  both  instances,  the  tax 
on  the  property  in  some  degree  affects  its  use. 

An  inquiry  is  made  whether  congress,  under  "the  power  to 
regulate  commerce  among  the  several  States,"  can  impose  a  tax 
for  the  use  of  canals,  railroads,  turnpike  roads,  and  bridges,  con- 
structed by  a  State,  or  its  citizens?  I  answer,  that  congress  has 
no  such  power.  The  United  States  cannot  use  any  one  of  these 
works  without  paying  the  customary  tolls.  The  tolls  are  imposed, 
not  as  a  tax,  in  the  ordinary  sense  of  that  term,  but  as  com- 
pensation for  the  increased  facility  afforded  by  the  improvement. 
The  act  of  New  York  now  under  consideration  is  called  a  health 
law.  It  imposes  a  tax  on  the  master  and  every  cabin  passenger  of 
a  vessel  from  a  foreign  port  of  $1.50;  and  of  $1  on  the  mate,  each 
steerage  passenger,  sailor,  or  mariner.  And  the  master  is  made 
responsible  for  the  tax.  he  having  a  right  to  exact  it  of  the  others. 
The  funds  so  collected  are  denominated  hospital  moneys,  and  are 
applied  to  the  use  of  the  marine  hospital;  the  surplus  to  be  paid 
to  the  treasurer  of  the  Society  for  the  Reformation  of  Juvenile 


224  CASES  ON  CONSTITUTIONAL  LAW. 

Delinquents  in  the  city  of  New  York,  for  the  use  of  that  society. 

To  call  this  a  health  law  would  seem  to  be  a  misapplication  of 
the  term.  It  is  difficult  to  perceive  how  a  health  law  can  be  ex- 
tended to  the  reformation  of  Juvenile  offenders.  On  the  same 
principle,  it  may  be  made  to  embrace  all  offenders,  so  as  to  pay 
the  expenses  incident  to  an  administration  of  the  criminal  law. 
And  with  the  same  propriety,  it  may  include  the  expenditures  of 
any  branch  of  the  civil  administration  of  the  city  of  New  York, 
or  of  the  State.  In  fact,  I  can  see  no  principle  on  which  the 
fund  can  be  limited,  if  it  may  be  used  as  authorized  by  the  act. 
The  amount  of  the  tax  is  as  much  within  the  discretion  of  the 
legislature  of  New  York  as  the  objects  to  which  it  may  be  applied. 

It  is  insisted,  that  if  the  act,  as  regards  the  hospital  fund,  be 
'within  the  power  of  the  State,  the  application  of  a  part  of  the 
fund  to  other  objects,  as  provided  in  the  act,  cannot  make  it  un- 
constitutional. This  argument  is  unsustainable.  If  the  State  has 
power  to  impose  a  tax  to  defray  the  necessary  expenses  of  a  health 
regulation,  and  this  power  being  exerted,  can  the  tax  be  increased 
so  as  to  defray  the  expenses  of  the  state  government?  This  is 
within  the  principle  asserted. 

The  case  of  The  City  of  New  York  v.  Miln,  11  Pet.,  102,  is 
relied  on  with  great  confidence,  as  sustaining  the  act  in  ques- 
tion. As  I  assented  to  the  points  ruled  in  that  case,  consistency, 
unless  convinced  of  having  erred,  will  compel  me  to  support  the 
law  now  before  us,  if  it  be  the  same  in  principle.  The  law  in 
Miln's  case  required  that  "the  master  or  commander  of  any  ship 
or  other  vessel  arriving  at  the  port  of  New  York  shall,  within 
twenty-four  hours  after  his  arrival,  make  a  report,  in  writing, 
on  oath  or  affirmation,  to  the  mayor  of  the  city  of  New  York,  of 
the  name,  place  of  birth,  and  last  legal  settlement,  age,  and  occu- 
pation of  every  person  brought  as  a  passenger;  and  of  all  per- 
sons permitted  to  land  at  any  place  during  the  voyage,  or  go  on 
board  of  some  other  vessel,  with  the  intention  of  proceeding  to 
said  city;  under  the  penalty  on  such  master  or  commander,  and 
the  owner  or  owners,  consignee  or  consignees,  of  such  ship  or 
vessel,  severally  and  respectively,  of  $75  for  each  individual  not 
so  reported."  And  the  suit  was  brought  against  Miln,  as  con- 
signee of  the  ship  Emily,  for  the  failure  of  the  master  to  make 
report  of  the  passengers  on  board  of  his  vessel. 

In  their  opinion,  this  court  say:  "The  law  operated  on  the 
territory  of  New  York,  over  which  that  State  possesses  an  acknowl- 
edged and  undisputed  jurisdiction  for  every  purpose  of  internal 
regulation;"  and  "on  persons  whose  rights  and  duties  are  rightfully 


THE    PASSENGER    CASES.  •    235 

prescribed  and  controlled  by  the  laws  of  the  respective  States, 
within  whose  territorial  limits  they  are  fonnd."  This  law  was 
considered  as  an  internal  police  regulation,  and  as  not  interfering 
with  commerce. 

A  duty  was  not  laid  upon  the  vessel  or  the  passengers,  but  the 
report  only  was  required  from  the  master,  as  above  stated,  Now, 
every  State  has  an  unquestionable  right  to  require  a  register  of 
the  names  of  the  persons  who  come  within  it  to  reside  temporarily 
or  permanently.  This  was  a  precautionary  measure  to  ascertain 
the  rights  of  the  individuals,  and  the  obligations  of  the  public, 
under  any  contingency  which  might  occur.  It  opposed  no  obstruc- 
tion to  congress,  imposed  no  tax  or  delay,  but  acted  upon  the 
master,  owner,  or  consignee  of  the  vessel,  after  the  termination 
of  the  voyage,  and  when  he  was  within  the  territory  of  the  State, 
mingling  with  its  citizens,  and  subject  to  its  laws. 

But  the  health  law,  as  it  is  called,  under  consideration,  is  alto- 
/    gether  different  in  its  objects  and  means.     It  imposes  a  tax  or 
/     duty  on  the  passengers,  officers,  and  sailors,  holding  the  master 
'      responsible  for  the  amount  at  the  immediate  termination  of  the 
voyage,  and,  necessarily,  before  the  passengers  have  set  their  feet 
on  land.    The  tax  on  each  passenger,  in  the  discretion  of  the  legis- 
lature, might  have  been  $5  or  $10,  or  any  other  sum,  amounting 
even  to  a  prohibition  of  the  transportation  of  passengers;  and  the 
1      professed  object  of  the  tax  is  as  well  for  the  benefit  of  juvenile 
^      offenders  as  for  the  marine  hospital.    And  it  is  not  denied  that  a 
considerable  sum  thus  received  has  been  applied  to  the  former 
object.    The  amount  and  application  of  this  tax  are  only  impor- 
tant to  show  the  consequences  of  the  exercise  of  this  power  by  the 
States.     The  principle  involved  is  vital  to  the  commercial  power 
of  the  Union. 

The  transportation  of  passengers  'is  regulated  by  congress.  More 

(than  two  passengers  for  every  five  tons  of  the  ship  or  vessel  are 
prohibited,  under  certain  penalties;  and  the  master  is  required  to 
report  to  the  collector  a  list  of  the  passengers  from  a  foreign  port, 
stating  the  age,  sex,  and  occupation  of  each,  and  the  place  of  their 
destination.  In  England,  the  same  subject  is  regulated  by  act  of 
parliament,  and  the  same  thing  is  done,  it  is  believed,  in  all  com- 
mercial countries.  If  the  transportation  of  passengers  be  a  branch 
of  commerce,  of  which  there  can  be  no  doubt,  it  follows  that  the 
act  of  New  York,  in  imposing  this  tax,  is  a  regulation  of  com- 
merce. It  is  a  tax  upon  a  commercial  operation, — ^upon  what  may, 
in  effect,  be  called  an  import.  In  a  commercial  sense,  no  just 
distinction  can  be  made,  as  regards  the  law  in  question,  between 

15 


226  CASES  ON  CONSTITUTIONAL  LAW. 

the  transportation  of  merchandise  and  passengers.  For  the  trans- 
portation of  both,  the  ship-owner  realizes  a  profit,  and  each  is  the 
subject  of  a  commercial  regulation  by  congress.  When  the  mer- 
chandise is  taken  from  the  ship,  and  becomes  mingled  with  the 
property  of  the  people  of  the  State,  like  other  property,  it  is  sub- 
ject to  the  local  law;  but  until  this  shall  take  place,  the  mer- 
chandise is  an  import,  and  is  not  subject  to  the  taxing  power  of 
the  State,  and  the  same  rule  applies  to  passengers.  "When  they 
leave  the  ship  and  mingle  with  the  citizens  of  the  State,  they 
become  subject  to  its  laws. 

In  Gibbons  v.  Ogden,  the  com-t  held  that  the  act  of  laying 
"duties  or  imposts  on  imports  or  exports"  is  derived  from  the  tax- 
ing power;  and  they  lay  much  stress  on  the  fact  that  this  power 
is  given  in  the  same  sentence  as  the  power  to  "lay  and  collect 
taxes."  "The  power,"  they  say,  "to  regulate  commerce  is  given" 
in  a  separate  clause,  "as  being  entirely  distinct  from  the  right  to 
levy  taxes  and  imposts,  and  as  being  a  new  power,  not  before  con- 
ferred;" and  they  remark,  that,  had  not  the  State  been  prohibited, 
they  might,  under  the  power  to  tax,  have  levied  "duties  on  im- 
ports or  exports."    9  Wheat.,  201. 

The  constitution  requires  that  all  "duties  and  imposts  shall  be 
uniform,"  and  declares  that  "no  preferences  shall  be  given  by 
any  regulation  of  commerce  or  revenue  to  the  ports  of  one  State 
over  those  of  another."  Now,  it  is  inexplicable  to  me  how  thir- 
teen or  more  independent  States  could  tax  imports  under  these 
provisions  of  the  constitution.  The  tax  must  be  uniform  through- 
out the  Union;  consequently,  the  exercise  of  the  power  by  any  one 
State  would  be  unconstitutional  as  it  would  destroy  the  uniformity 
\  of  the  tax.  To  secure  this  uniformity  was  one  of  the  motives 
which  led  to  the  adoption  of  the  constitution.  The  want  of  it 
produced  collisions  in  the  commercial  regulations  of  the  States. 
But  if,  as  is  contended,  these  provisions  of  the  constitution  oper- 
ate only  on  the  federal  government,  and  the  States  are  free  to 
regulate  commerce  by  taxing  its  operations  in  all  cases  where 
they  are  not  expressly  prohibited,  the  constitution  has  failed 
to  accomplish  the  great  object  of  those  who  adopted  it. 

These  provisions  impose  restrictions  on  the  exercise  of  the  com- 
mercial power,  which  was  exclusively  vested  in  congress;  and  is 
as  binding  on  the  States  as  any  other  exclusive  power  with  which 
it  is  classed  in  the  constitution. 

It  is  immaterial  under  what  power  duties  on  imports  are  im- 
posed. That  they  are  the  principal  means  by  which  commerce 
is  regulated,  no  one  can  question.    Whether  duties  shall  be  im- 


f 


THE    PASSENGER    CASES.  227 

posed  with  the  view  to  protect  our  manufactures,  or  for  purposes 
of  revenue  only,  has  always  been  a  leading  subject  of  discussion  in 
congress;  and  also  what  foreign  articles  may  be  admitted  free  of 
duty.  The  force  of  the  argument,  that  things  untouched  by  the 
regulating  power  have  been  equally  considered  with  those  of  the 
same  class  on  which  it  has  operated,  is  not  admitted  by  the  coun- 
sel for  the  defendant.  But  does  not  all  experience  sustain  the 
argument?  A  large  amount  of  foreign  articles  brought  into  this 
country  for  several  years,  have  been  admitted  free  of  duty.  Have 
not  these  articles  been  considered  by  congress?  The  discussion 
in  both  houses  of  congress,  the  report  by  the  committees  of  both, 
and  the  laws  that  have  been  enacted,  show  that  they  have  been 
duly  considered. 

Except  to  guard  its  citizens  against  diseases  and  paupers,  the 
municipal  power  of  a  State  cannot  prohibit  the  introduction  of 
foreigners  brought  to  this  country  under  the  authority  of  con- 
gress. It  may  deny  to  them  a  residence,  unless  they  shall  give 
security  to  indemnify  the  public  should  they  become  paupers.  The 
slave  States  have  the  power,  as  this  court  held  in  Groves  v.  Slaugh- 
ter, to  prohibit  slaves  from  being  brought  into  them  as  mer- 
chandise. But  this  was  on  the  ground  that  such  a  prohibition 
did  not  come  within  the  power  of  congress  "to  regulate  commerce 
among  the  several  States."  It  is  suggested  that,  under  this  view 
of  the  commercial  power,  slaves  may  be  introduced  into  the  free 
States.  Does  any  one  suppose  that  congress  can  ever  revive  the 
slave-trade?  And  if  this  were  possible,  slaves,  thus  introduced, 
would  be  free. 

As  early  as  May  27,  1796,^  congress  enacted,  that  "the  Presi- 
dent be  authorized  to  direct  the  revenue-officers  commanding  forts 
and  revenue  cutters,  to  aid  in  the  execution  of  quarantine,  and 
also  in  the  execution  of  the  health  laws  of  the  States  respectively.'* 
And  by  the  act  of  Feb.  25,  1799,^  which  repealed  the  above  act, 
more  enlarged  provisions  were  enacted,  requiring  the  revenue-offi- 
cers of  the  United  States  to  conform  to  and  aid  in  the  execution 
of  the  quarantine  and  health  laws  of  the  States.  In  the  first  sec- 
tion of  this  law  there  is  a  proviso  that  "nothing  therein  shall 
enable  any  State  to  collect  a  duty  of  tonnage  or  impost  without 
the  consent  of  congress."  A  proviso  limits  the  provisions  of  the 
act  into  which  it  is  introduced.  But  this  proviso  may  be  con- 
sidered as  not  restricted  to  this  purpose.  It  shows  with  what 
caution  congress  guarded  the  commercial  power,  and  it   is  an 

1 1  Stats,  at  Large,  474.  2  1  ib„  619. 


228  CASES  ON  CONSTITUTIONAL  LAW. 

authoritative  provision  against  its  exercise  by  the  States.  An 
impost,  in  its  enlarged  sense,  means  any  tax  or  tribute  imposed 
by  authority,  and  applies  as  well  to  a  tax  on  persons  as  to  a 
tax  on  merchandise.  In  this  sense  it  was  no  doubt  used  in  the 
above  act.  Any  other  construction  would  be  an  imputation  on 
the  intelligence  of  congress. 

If  this  power  to  tax  passengers  from  a  foreign  country  belongs 
to  a  State,  a  tax,  on  the  same  principle,  may  be  imposed  on  all 
persons  coming  into  or  passing  through  it  from  any  other  State 
of  the  Union,  And  the  New  York  statute  does  in  fact  lay  a 
tax  on  passengers  on  board  of  any  coasting-vessel  which  arrives 
at  the  port  of  New  York,  with  an  exception  of  passengers  in  ves- 
sels from  New  Jersey,  Connecticut,  and  Ehode  Island,  who  are 
required  to  pay  for  one  trip  in  each  month.  All  other  passengers 
pay  the  tax  every  trip. 

If  this  may  be  done  in  New  York,  every  other  State  may  do 
the  same,  on  all  the  lines  of  our  internal  navigation.  Passengers 
on  a  steamboat  which  plies  on  the  Ohio,  the  Mississippi,  or  on 
any  of  our  other  rives,  or  on  the  lakes,  may  be  required  to  pay 
a  tax,  imposed  at  the  discretion  of  each  State  within  which  the 
boat  shall  touch.  And  the  same  principle  will  sustain  a  right  in 
every  State  to  tax  all  persons  who  shall  pass  through  its  terri- 
tory on  railroad  cars,  canal  boats,  stages,  or  in  any  other  manner. 
This  M^ould  enable  a  State  to  establish  and  enforce  a  non-inter- 
course with  every  other  State. 

The  9th  section  of  the  first  article  of  the  constitution  declares: 
"Nor  shall  vessels  bound  to  or  from  one  State,  be  obliged  to 
enter,  clear,  or  pay  duties  in  another,"  But  if  the  commercial 
power  of  the  Union  over  foreign  commerce  does  not  exempt  pas- 
sengers brought  into  the  country  from  state  taxation,  they  can 
claim  no  exemption  under  the  exercise  of  the  same  power  among 
the  States.  In  McCulloch  v.  The  State  of  Maryland,  4  Wheat., 
431,  this  court  say:  "That  there  is  a  plain  repugnance  in  con- 
ferring on  one  government  a  power  to  control  the  constitutional 
measures  of  another,  which  other,  with  respect  to  those  very  meas- 
ures, is  declared  to  be  supreme  over  that  which  exerts  the  control, 
is  a  proposition  not  to  be  denied." 

The  officers  and  crew  of  the  vessel  are  as  much  the  instruments 
of  commerce  as  the  ship,  and  yet  they  are  taxed  under  this  health 
law  of  New  York  as  such  instruments.  The  passengers  are  taxed 
as  passengers,  being  the  subjects  of  commerce  from  a  foreign 
country.  By  the  14th  article  of  the  treaty  of  1794,^  with  Eng- 
3  8  Stats,  at  Large,  116. 


THE    PASSENGER    CASES.  229 

land,  it  is  stipulated  that  the  people  of  each  country  may  freely 
come,  with  their  ships  and  cargoes,  to  the  other,  subject  only  to 
the  laws  and  statutes  of  the  two  countries  respectively.  The  stat- 
utes here  referred  to  are  those  of  the  federal  government,  and  not 
of  the  States.  The  general  government  only  is  known  in  our 
foreign  intercourse. 

By  the  46th  section  of  the  act  of  March,  1799,^  the  wearing 
apparel  and  other  personal  baggage,  and  the  tools  or  implements 
of  a  mechanical  trade,  from  a  foreign  port,  are  admitted  free  of 
duty.  These  provisions  of  the  treaty  and  of  the  act  are  still  in 
force,  and  they  have  a  strong  bearing  on  this  subject.  They  are, 
in  effect,  repugnant  to  the  act  of  New  York. 

It  is  not  doubted  that  a  large  portion,  perhaps  nine-tenths,  of 
the  foreign  passengers  landed  at  the  port  of  New  York  pass 
through  the  State  to  other  places  of  residence.  At  such  places, 
therefore,  pauperism  must  be  increased  much  more  by  the  influx 
of  foreigners  than  in  the  city  of  New  York.  If,  by  reason  of  com- 
merce, a  burden  is  thrown  upon  our  commercial  cities,  congress 
should  make  suitable  provisions  for  their  relief.  And  I  have  no 
doubt  this  will  be  done. 

The  police  power  of  the  State  cannot  draw  within  its  jurisdic- 
tion objects  which  lie  beyond  it.  It  meets  the  commercial  power 
of  the  Union  in  dealing  with  subjects  under  the  protection  of  that 
power,  yet  it  can  only  be  exerted  under  peculiar  emergencies,  and 
to  a  limited  extent.  In  guarding  the  safety,  the  health,  and  morals 
of  its  citizens,  a  State  is  restricted  to  appropriate  and  constitu- 
tional means.  If  extraordinary  expense  be  incurred,  an  equitable 
claim  to  an  indemnity  can  give  no  power  to  a  State  to  tax  objects 
not  subject  to  its  jurisdiction. 

The  attorney-general  of  New  York  admij;ted  that  if  the  com- 
mercial power  were  exclusively  vested  in  congress,  no  part  of  it 
can  be  exercised  by  a  State.  The  soundness  of  this  conclusion 
is  not  only  sustainable  by  the  decisions  of  this  court,  but  by  every 
approved  rule  of  construction.  That  the  power  is  exclusive  seems 
to  be  as  fully  established  as  any  other  power  under  the  consti- 
tution, which  has  been  controverted. 

A  tax  or  duty  upon  tonnage,  merchandise,  or  passengers  is  a 
regulation  of  commerce,  and  cannot  be  laid  by  a  State,  except 
under  the  sanction  of  congress  and  for  the  purposes  specified  in 
ithe  constitution.  On  the  subject  of  foreign  commerce,  including 
the  transportation  of  passengers,  congress  have  adopted  such  reg- 
ulations as  they  deemed  proper,  taking  into  view  our  relations 

11  Stats,  at  Large,  661. 


230  CASES  ON  CONSTITUTIONAL  LAW. 

with  other  countries.  And  this  covers  the  whole  ground.  The 
act  of  New  York  which  imposes  a  tax  on  passengers  of  a  ship  from 
a  foreign  port,  in  the  manner  provided,  is  a  regulation  of  foreign 
commerce,  which  is  exclusively  vested  in  congress;  and  the  act  is, 
therefore,  void. 

NoERis  V.  City  of  Boston. 

This  is  a  writ  of  error,  which  brings  before  the  court  the  judg- 
ment of  the  supreme  court  of  the  State  of  Massachusetts. 

"An  act  relating  to  alien  passengers,"  passed  the  20th  of  April, 
1837,  by  the  legislature  of  Massachusetts,  contains  the  following 
provisions: — 

"§  1.  When  any  vessel  shall  arrive  at  any  port  or  harbor 
within  this  State,  from  any  port  or  place  without  the  same,  with 
alien  passengers  on  board,  the  officer  or  officers  whom  the  mayor 
and  aldermen  of  the  city,  or  the  selectmen  of  the  town,  where 
it  is  proposed  to  land  such  passengers,  are  hereby  authorized  and 
required  to  appoint,  shall  go  on  board  such  vessels  and  examine 
into  the  condition  of  said  passengers. 

"§  2.  If,  on  such  examination,  there  shall  be  found,  among 
said  passengers,  any  lunatic,  idiot,  maimed,  aged,  or  infirm  person, 
incompetent,  in  the  opinion  of  the  officer  so  examining,  to  main- 
tain themselves,  or  who  have  been  paupers  in  any  other  country, 
no  such  alien  passenger  shall  be  permitted  to  land,  until  the  mas- 
ter, owner,  consignee,  or  agent  of  such  vessel  shall  have  given  to 
such  city  or  town  a  bond  in  the  sum  of  $1,000,  with  good  and 
sufficient  security,  that  no  such  lunatic  or  indigent  passenger  shall 
become  a  city,  town,  or  state  charge  within  ten  years  from  the  date 
of  said  bond. 

"§  3.  No  alien  passenger,  other  than  those  spoken  of  in  the 
preceding  section,  shall  be  permitted  to  land,  until  the  master, 
owner,  consignee,  or  agent  of  such  vessel  shall  pay  to  the  regularly 
appointed  boarding  officer  the  sum  of  two  dollars  for  each  passen- 
ger so  landing;  and  the  money  so  collected  shall  be  paid  into 
the  treasury  of  the  city  or  town,  to  be  appropriated,  as  the  city  or 
town  may  direct,  for  the  support  of  foreign  paupers." 

The  plaintiff  being  an  inhabitant  of  St.  John's,  in  the  Province 
of  New  Brunswick  and  kingdom  of  Great  Britain,  arriving  in 
the  port  of  Boston,  from  that  place,  in  command  of  a  schooner 
called  The  Union  Jack,  which  had  on  board  nineteen  alien  passen- 
gers, for  each  of  which  two  dollars  were  demanded  of  the  plaintiff, 
and  paid  by  him,  on  protest  that  the  exaction  was  illegal.     An 


THE    PASSENGER    CASES.  "  231 

action  being  brought,  to  recover  back  this  money,  against  the  city 
of  Boston,  in  the  court  of  common  pleas,  under  the  instructions 
of  the  court,  the  jury  found  a  verdi&t  for  the  defendant,  on  v/hich 
judgment  was  entered,  and  which  was  affirmed  on  a  writ  of  error 
to  the  supreme  court. 

Under  the  1st  and  2d  sections  of  the  above  act,  the  persons 
appointed  may  go  on  board  of  a  ship  from  a  foreign  port,  which 
arrives  at  the  port  of  Boston  with  alien  passengers  on  board,  and 
examine  whether  any  of  them  are  lunatics,  idiots,  maimed,  aged, 
or  infirm,  incompetent  to  maintain  themselves,  or  have  been 
paupers  in  any  other  country,  and  not  permit  such  persons  to  be 
put  on  shore,  unless  security  shall  be  given  that  they  shall  not 
become  a  city,  town,  or  state  charge.  This  is  the  exercise  of  an 
unquestionable  power  in  the  State  to  protect  itself  from  foreign 
paupers  and  other  persons  who  would  be  a  public  charge;  but  the 
nineteen  alien  passengers  for  whom  the  tax  was  paid  jiid  not 
come,  nor  any  one  of  them,  within  the  second  section.  The  tax 
of  tM'O  dollars  was  paid  by  the  master  for  each  of  these  passengers 
before  they  were  permitted  to  land.  This,  according  to  the  view 
taken  in  the  above  case  of  Smith  v.  Turner,  was  a  regulation  of 
commerce,  and  not  being  within  the  power  of  the  State,  the  act 
imposing  the  tax  is  void. 

The  fund  thus  raised  was  no  doubt  faithfully  applied  for  the 
support  of  foreign  paupers,  but  the  question  is  one  of  power,  and 
not  of  policy.  The  judgment  of  the  supreme  court,  in  my  opin- 
ion, should  be  reversed,  and  this  cause  be  remanded  to  that  court, 
with  instructions  to  carry  out  the  judgment  of  this  court. 

NoERis  V.  City  of  Boston,  and  Smith  v.  Turner. 

Wayne,  J.  I  agree  with  Mr.  Justice  McLean,  Mr.  Justice 
Catron,  Mr.  Justice  McKinley,  and  Mr.  Justice  Grier,  that  the 
laws  of  Massachusetts  and  'New  York,  so  far  as  they  are  in  ques- 
tion in  these  cases,  are  unconstitutional  and  void.  I  would  not 
say  so  if  I  had  any,  the  least,  doubt  of  it;  for,  I  think  it  obliga- 
tory upon  this  court,  when  there  is  a  doubt  of  the  unconstitutional- 
ity of  a  law,  that  its  judgment  should  be  in  favor  of  its  validity.  I 
have  formed  my  conclusions  in  these  cases  with  this  admission 
constantly  in  mind. 

Before  stating,  however,  what  they  are,  it  will  be  well  for  me 
to  say  that  the  four  judges  and  myself,  who  concur  in  giving  the 
judgment  in  these  cases,  do  not  differ  in  the  grounds  upon  which 
our  judgment  has  been  formed,  except  in  one  particular,  in  no 
way  at  variance  with  our  united  conclusion;   and  that  is,  that  a 


233  CASES  ON  CONSTITUTIONAL  LAW. 

majority  of  us  do  not  think  it  necessary  in  these  cases  to  reaffirm, 
with  our  brother  McLean,  what  this  court  has  long  since  decided, 
that  the  constitutional  power  to  regulate  "commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian  tribes," 
is  exclusively  vested  in  congress,  and  that  no  part  of  it  can  be 
exercised  by  a  State. 

I  believe  it  to  be  so,  just  as  it  is  expressed  in  the  preceding  sen- 
tence. And  in  the  sense  in  which  those  words  were  used  by  this 
court  in  the  case  of  Gibbons  v.  Ogden,  9  Wheat.,  198.  All  that 
was  decided  in  that  case  remains  unchanged  by  any  subsequent 
opinion  or  judgment  of  this  court.  Some  of  the  judges  of  it  have, 
in  several  cases,  expressed  opinions  that  the  power  to  regulate 
commerce  is  not  exclusively  vested  in  Congress.  But  they  are 
individual  opinions,  without  judicial  authority  to  overrule  the 
contrary  conclusion,  as  it  was  given  by  this  court  in  Gibbons  v. 
Ogden. 

Still,  I  do  not  think  it  necessary  to  reaffirm  that  position  in 
these  cases  as  a  part  of  our  judgments  upon  them,     .    .     . 

In  my  view,     ...     I  think  the  court  means  now  to  decide: — 

1.  That  the  acts  of  New  York  and  Massachusetts  imposing  a 
tax  upon  passengers,  either  foreigners  or  citizens,  coming  into  the 
ports  in  those  States,  either  in  foreign  vessels  or  vessels  of  the 
United  States,  from  foreign  nations  or  from  ports  in  the  United 
States,  are  unconstitutional  and  void,  being  in  their  nature  regula- 
tions of  commerce  contrary  to  the  grant  in  the  constitution  to  con- 
gress of  the  power  to  regulate  commerce  with  foreign  nations  and 
among  the  several  States. 

2.  That  the  States  of  this  Union  cannot  constitutionally  tax 
the  commerce  of  the  United  States  for  the  purposes  of  paying  any 
ex.pense  incident  to  the  execution  of  their  police  laws;  and  that 
the  commerce  of  the  United  States  includes  an  intercourse  of 
persons,  as  well  as  the  importation  of  merchandise. 

3.  That  the  acts  of  Massachusetts  and  Xew  York  in  question 
in  these  cases  conflict  with  treaty  stipulations  existing  between 
the  United  States  and  Great  Britain,  permitting  the  inhabitants 
of  the  two  countries  "freely  and  securely  to  come,  with  their  ships 
and  cargoes,  to  all  places,  ports,  and  rivers  in  the  territories  of  each 
country  to  which  other  foreigners  are  permitted  to  come,  to  enter 
into  the  same,  and  to  remain  and  reside  in  any  parts  of  said  terri- 
tories, respectively;  also,  to  hire  and  occupy  houses  and  warehouses 
for  the  purposes  of  their  commerce,  and  generally  the  merchants 
and  traders  of  each  nation  respectively  shall  enjoy  the  most  com- 
plete protection  and  security  for  their  commerce,  but  subject  al- 


THE    PASSENGER    CASES.  233 

ways  to  the  laws  and  statutes  of  the  two  countries  respectively:" 
and  that  said  laws  are  therefore  unconstitutional  and  void. 

4.  That  the  congress  of  the  United  States  having  by  sundry 
acts,  passed  at  different  times,  admitted  foreigners  into  the  United 
States  with  their  personal  luggage  and  tools  of  trade,  free  from 
all  duty  or  imposts,  the  acts  of  Massachusetts  and  New  York, 
imposing  any  tax  upon  foreigners  or  immigrants  for  any  purpose 
whatever,  whilst  the  vessel  is  in  transitu  to  her  port  of  destina- 
tion, though  said  vessel  may  have  arrived  within  the  jurisdictional 
limits  of  either  of  the  States  of  Massachusettts  and  New  York, 
and  before  the  passengers  have  been  landed,  are  in  violation  of 

^said  acts  of  congress,  and  therefore  unconstitutional  and  void. 

5.  That  the  acts  of  Massachusetts  and  New  York,  so  far  as  they 
impose  any  obligation  upon  the  owners  or  consignees  of  vessels, 
or  upon  the  captains  of  vessels  or  freighters  of  the  same,  arriving 
in  the  ports  of  the  United  States  within  the  said  States,  to  pay 
any  tax  or  duty  of  any  kind  whatever,  or  to  be  in  any  way  re- 
sponsible for  the  same,  for  passengers  arriving  in  the  United 
States,  or  coming  from  a  port  in  the  United  States,  are  unconsti- 
tutional and  void,  being  contrary  to  the  constitutional  grant  to 
congress  of  the  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  to  the  legislation  of  congress 
under  the  said  power,  by  which  the  United  States  have  been  laid 
off  into  collection  districts,  and  ports  of  entry  established  within 
the  same,  and  commercial  regulations  prescribed,  under  which 
vessels,  their  cargoes  and  passengers,  are  to  be  admitted  into  the 
ports  of  the  United  States,  as  well  from  abroad  as  from  other  ports 
of  the  United  States.  That  the  act  of  New  York  now  in  ques- 
tion, so  far  as  it  imposes  a  tax  upon  passengers  arriving  in  vessels 
from  other  ports  in  the  United  States,  is  properly  in  this  case 
before  this  court  for  construction,  and  that  the  said  tax  is  uncon- 
stitutional and  void.  That  the  ninth  section  of  the  first  article  of 
the  constitution  includes  within  it  the  migration  of  other  persons, 
as  well  as  the  importation  of  slaves,  and  in  terms  recognizes  that 
other  persons,  as  well  as  slaves,  may  be  the  subjects  of  importation 
and  commerce. 

6.  That  the  5th  clause  of  the  9th  section  of  the  1st  article 
of  the  constitution,  which  declares  that  "no  preference  shall  be 

/  given  by  any  regulation  of  commerce  or  revenue  to  the  ports  of 
/  one  State  over  those  of  another  State;  nor  shall  vessels  bound  to 
\  or  from  one  State,  be  obliged  to  enter,  clear,  or  pay  duties  in  an- 
\  other,''  is  a  limitation  upon  the  power  of  congress  to  regulate  com- 
Inerce  for  the  purpose  of  producing  entire  commercial  equality 


\ 


234  CASES  ON  CONSTITUTIONAL  LAW. 

within  the  United  States,  and  also  a  prohibition  upon  the  States 
to  destroy  such  equality  by  any  legislation  prescribing  a  condition 
upon  which  vessels  bound  from  one  State;  shall  enter  the  ports  of 
another  State. 

7.  That  the  acts  of  Massachusetts  and  Xew  York,  so  far  as 
they  impose  a  tax  upon  passengers,  are  unconstitutional  and  void, 
because  each  of  them  so  far  conflicts  with  the  first  clause  of  the 
eighth  section  of  the  first  article  of  the  constitution,  which  en- 
joins that  all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States;  because  the  constitutional  uniformity  en- 
joined in  respect  to  duties  and  imposts  is  as  real  and  obligatory 
upon  the  States,  in  the  absence  of  all  legislation  by  congress,  as  if 
the  uniformity  had  been  made  by  the  legislation  of  congress;  and 
that  such  constitutional  uniformity  is  interfered  with  and  de- 
stroyed by  any  State  imposing  any  tax  upon  the  intercourse  of 
persons  from  State  to  State,  or  from  foreign  countries  to  the 
United  States. 

■  8.  That  the  power  in  congress  to  regulate  commerce  Avith  for- 
eign nations  and  among  the  several  States,  includes  navigation 
upon  the  high  seas,  and  in  the  bays,  harbors,  lakes,  and  navigable 
waters  within  the  United  States,  and  that  any  tax  by  a  State  in 
any  way  affecting  the  right  of  navigation,  or  subjecting  the  ex- 
ercise of  the  right  to  a  condition,  is  contrary  to  the  aforesaid  grant. 

9.  That  the  States  of  tliis  Union  may,  in  the  exercise  of  their 
police  powers,  pass  quarantine  and  health  laws,  interdicting  ves- 
sels coming  from  foreign  ports,  or  ports  within  the  United  States, 
from  landing  passengers  and  goods,  prescribe  the  places  and  time 
for  vessels  to  quarantine,  and  impose  penalties  upon  persons  for 
violating  the  same;  and  that  such  laws,  though  affecting  com- 
merce in  its  transit,  are  not  regulations  of  commerce  prescribing 
terms  upon  which  merchandise  and  persons  shall  be  admitted  into 
the  ports  of  the  United  States,  but  precautionary  regulations  to 
prevent  vessels  engaged  in  commerce  from  introducing  disease 
into  the  ports  to  which  they  are  bound;  and  that  the  States  may, 
in  the  exercise  of  such  police  power,  without  any  violation  of  the 
power  in  congress  to  regulate  commerce,  exact  from  the  owner  or 
consignee  of  a  quarantined  vessel,  and  from  the  passengers  on 
board  of  her,  such  fees  as  will  pay  to  the  State  the  cost  of  their 
detention  and  of  the  purification  of  the  vessel,  cargo,  and  apparel 
of  the  persons  on  board.     .     .     . 

[Chief  Justice  Taney,  with  whom  Justice  Nelson  con- 
curred, and  Justices  Daniel  and  Woodbury  delivered  dissent- 
ing opinions.] 


COOLEY  V.  BOARD  OF  WARDENS  OF  PHILADELPHIA.    335 

COOLEY  V.  THE  BOAED  OF  WARDENS   OF  THE  PORT 
OF   PHILADELPHIA. 

12  Howard,  299.     Decided  1851, 
The  case  is  stated  in  the  opinion  of  the  court.     .     .     . 

Curtis,  J.,  delivered  the  opinion  of  the  court. 

These  cases  are  brought  here  by  writs  of  error  to  the  supreme 
court  of  the  commonwealth  of  Pennsylvania. 

They  are  actions  to  recover  half -pilotage  fees  under  the  29th 
section  of  the  act  of  the  legislature  of  Pennsylvania,  passed  on  the 
second  day  of  March,  1803.  The  plaintiff  in  error  alleges  that  the 
highest  court  of  the  State  has  decided  against  a  right  claimed  by 
him  under  the  constitution  of  the  United  States.  That  right  is, 
to  be  exempted  from  the  payment  of  the  sums  of  money,  demanded 
pursuant  to  the  state  law  above  referred  to,  because  that  law  con- 
travenes several  provisions  of  the  constitution  of  the  United 
States. 

The  particular  section  of  the  State  law  drawn  in  question  is  as 
follows:  "That  every  ship  or  vessel  arriving  from,  or  bound  to 
any  foreign  port  or  place,  and  every  ship  or  vessel  of  the  burden 
of  seventy-five  tons  or  more,  sailing  from,  or  bound  to  any  port 
not  within  the  River  Delaware,  shall  be  obliged  to  receive  a  pilot. 
And  it  shall  be  the  duty  of  the  master  of  every  such  ship  or  vessel, 
within  thirty-six  hours  next  after  the  arrival  of  such  ship  or  vessel 
at  the  city  of  Philadelphia,  to  make  report  to  the  master-warden 
of  the  name  of  such  ship  or  vessel,  her  draught  of  water,  and  the 
name  of  the  pilot  who  shall  have  conducted  her  to  the  port.  And 
when  any  such  vessel  shall  be  outward  bound,  the  master  of  such 
vessel  shall  make  known  to  the  wardens  the  name  of  such  vessel, 
and  of  the  pilot  who, is  to  conduct  her  to  the  capes,  and  her 
draught  of  water  at  that  time.  And  it  shall  be  the  duty  of  the 
wardens  to  enter  every  such  vesfsel  in  a  book  to  be  by  them  kept 
for  that  purpose,  without  fee  or  reward.  And  if  the  master  of  any 
ship  or  vessel  shall  neglect  to  make  such  report,  he  shall  forfeit 
and  pay  the  sum  of  $60.  And  if  the  master  of  any  such  ship  or 
vessel  shall  refuse  or  neglect  to  take  a  pilot,  the  master,  owner,  or 
consignee  of  such  vessel  shall  forfeit  and  pay  to  the  warden  afore- 
said, a  sum  equal  to  the  half-pilotage  of  such  ship  or  vessel,  to  the 
use  of  the  Society  for  the  Relief,  etc.,  to  be  recovered  as  pilotage 
in  the  manner  hereinafter  directed:  Provided  always,  that  where 
it  shall  appear  to  the  warden  that  in  case  of  an  inward  bound  vessel. 


236  CASES  ON  CONSTITUTIONAL  LAW. 

a  pilot  did  not  offer  before  she  had  reached  Keedy  Island;  or,  in 
case  of  an  outward  bound  vessel,  that  a  pilot  could  not  be  ob- 
tained for  twenty-four  hours  after  such  vessel  was  ready  to  de- 
part, the  penalty  aforesaid,  for  not  having  a  pilot,  shall  not  be 
incurred."  This  is  one  section  of  "An  Act  to  establish  a  Board  of 
Wardens  for  the  Port  of  Philadelphia,  and  for  the  Eegulation  of 
Pilots  and  Pilotages,  etc.,"  and  the  scope  of  the  act  is,  in  con- 
formity with  the  title,  to  regulate  the  whole  subject  of  the  pilotage 
of  that  port. 

We  think  this  particular  regulation  concerning  half-pilotage  fees 
is  an  appropriate  part  of  a  general  system  of  regulations  of  this 
subject.  Testing  it  by  the  practice  of  commercial  States  and  coun- 
tries legislating  on  this  subject,  we  find  it  has  usually  been  deemed 
necessary  to  make  similar  provisions.  Numerous  laws  of  this 
kind  are  cited  in  the  learned  argument  of  the  counsel  for  the  de- 
fendant in  error;  and  their  fitness,  as  part  of  a  system  of  pilotage, 
in  many  places,  may  be  inferred  from  their  existence  in  so  many 
different  States  and  countries.  Like  other  laws,  they  are  framed 
to  meet  the  most  usual  cases,  qum  frequentius  accidunt;  they  rest 
upon  the  propriety  of  securing  lives  and  property  exposed  to  the 
perils  of  a  dangerous  navigation,  by  taking  on  board  a  person  pe- 
culiarly skilled  to  encounter  or  avoid  them;  upon  the  policy  of  dis- 
couraging the  commanders  of  vessels  from  refusing  to  receive  such 
persons  on  board  at  the  proper  times  and  places;  and  upon  the 
expediency,  and  even  intrinsic  justice,  of  not  suffering  those  who 
have  incurred  labor,  and  expense,  and  danger,  to  place  themselves 
in  a  position  to  render  important  service  generally  necessary,  to 
go  unrewarded,  because  the  master  of  a  particular  vessel  either 
rashly  refuses  their  proffered  assistance,  or,  contrary  to  the  gen- 
eral experience,  does  not  need  it.  There  are  many  cases,  in  which 
an  offer  to  perform,  accompanied  by  present  ability  to  perform, 
is  deemed  by  law  equivalent  to  performance.  The  laws  of  com- 
mercial States  and  countries  have  made  an  offer  of  pilotage  serv- 
ice one  of  those  cases;  and  we  cannot  pronounce  a  law  which  does 
this  to  be  so  far  removed  from  the  usual  and  fit  scope  of  laws  for 
the  regulation  of  pilots  and  pilotage,  as  to  be  deemed,  for  this 
cause,  a  covert  attempt  to  legislate  upon  another  subject  under  the 
appearance  of  legislating  on  this  one. 

It  is  urged  that  the  second  section  of  the  act  of  the  legislature 
of  Pennsylvania,  of  the  11th  of  June,  1832,  proves  that  the  State 
had  other  objects  in  view  than  the  regulation  of  pilotage.  That 
section  is  as  follows: — 

"And  be  it  further  enacted,  by  the  authority  aforesaid,  that 


COOLEY  V.  BOARD  OF  WARDENS  OF  PHILADEi^PHIA.    237 

from  and  after  the  first  day  of  July  next,  no  health-fee  or  half- 
pilotage  shall  be  charged  on  any  vessel  engaged  in  the  Pennsyl- 
vania coal  trade." 

It  must  be  remembered,  that  the  fair  objects  of  a  law  imposing 
half-pilotage  when  a  pilot  is  not  received,  may  be  secured,  and  at 
the  same  time  some  classes  of  vessels  exempted  from  such  charge. 
Thus,  the  very  section  of  the  act  of  1803,  now  under  consideration, 
does  not  apply  to  coasting  vessels  of  less  burden  than  seventy-five 
tons,  nor  to  those  bound  to,  or  sailing  from,  a  port  in  the  Kiver 
Delaware.  The  purpose  of  the  law  being  to  cause  masters  of  such 
vessels  as  generally  need  a  pilot,  to  secure  one,  and  to  secure  to 
the  pilots  a  fair  remuneration  for  cruising  in  search  of  vessels,  or 
Avaiting  for  employment  in  port,  there  is  an  obvious  propriety  in 
having  reference  to  the  number,  size,  and  nature  of  employment 
of  vessels  frequenting  the  port;  and  it  will  be  found,  by  an  ex- 
amination of  the  different  systems  of  these  regulations,  which 
have  from  time  been  made  in  this  and  other  countries,  that  the 
legislative  discretion  has  been  constantly  exercised  in  making  dis- 
criminations, founded  on  differences  both  in  the  character  of  the 
trade,  and  the  tonnage  of  vessels  engaged  therein. 

"We  do  not  perceive  anything  in  the  nature  or  extent  of  this 
particular  discrimination  in  favor  of  vessels  engaged  in  the  coal 
trade,  which  would  enable  us  to  declare  it  to  be  other  than  a  fair 
exercise  of  legislative  discretion,  acting  upon  the  subject  of  the 
regulation  of  the  pilotage  of  this  port  of  Philadelphia,  with  a  view 
to  operate  upon  the  masters  of  those  vessels,  who,  as  a  general 
rule,  ought  to  take  a  pilot,  and  with  the  further  view  of  relieving 
from  the  charge  of  half-pilotage  such  vessels  as  from  their  size, 
or  the  nature  of  their  employment,  should  be  exempted  from  con- 
tributing to  the  support  of  pilots,  except  so  far  as  they  actually 
receive  their  services.  In  our  judgment,  though  this  law  of  1832 
has  undoubtedly  modified  the  29th  section  of  the  act  of  1803,  and 
both  are  to  be  taken  together  as  giving  the  rule  on  this  subject 
of  half-pilotage,  yet  this  change  in  the  rule  has  not  changed  the 
nature  of  the  law,  nor  deprived  it  of  the  character  and  attributes 
of  a  law  for  the  regulation  of  pilotage. 

Nor  do  we  consider  that  the  appropriation  of  the  sums  received 
under  this  section  of  the  act,  to  the  use  of  the  society  for  the  relief 
of  distressed  and  decayed  pilots,  their  widows  and  children,  has 
any  legitimate  tendency  to  impress  on  it  the  character  of  a  revenue 
law.  Whether  these  sums  shall  go  directly  to  the  use  of  the  indi- 
vidual pilots  by  whom  the  service  is  tendered,  or  shall  form  a 
common  fund,  to  be  administered  by  trustees  for  the  benefit  of 


238  CASES  ON  CONSTITUTIONAL  LAW. 

such  pilots  and  their  families  as  may  stand  in  peculiar  need  of  it, 
is  a  matter  resting  in  legislative  discretion,  in  the  proper  exercise 
of  which  the  pilots  alone  are  interested. 

For  these  reasons,  we  cannot  yield  our  assent  to  the  argument 
that  this  provision  of  law  is  in  conflict  with  the  second  and  third 
clauses  of  the  tenth  section  of  the  first  article  of  the  constitution, 
which  prohibit  a  State,  without  the  assent  of  congress,  from  lay- 
ing any  imposts  or  duties  on  imports  or  exports,  or  tonnage.  This 
provision  of  the  constitution  was  intended  to  operate  upon  sub- 
jects actually  existing  and  well  understood  when  the  constitution 
was  formed.  Imposts  and  duties  on  imports,  exports,  and  ton- 
nage were  then  known  to  the  commerce  of  the  civilized  world  to 
be  as  distinct  from  fees  and  charges  for  pilotage,  and  from  the 
penalties  by  which  commercial  States  enforced  their  piM-laws, 
as  they  were  from  charges  for  wharfage  or  towage,  or  any  other 
local  port-charges  for  services  rendered  to  vessels  or  cargoes;  and 
to  declare  that  such  pilot-fees  or  penalties  are  embraced  within 
the  words  imposts  or  duties  on  imports,  exports,  or  tonnage,  would 
be  to  confound  things  essentially  different,  and  which  must  have 
been  known  to  be  actually  different  by  those  who  use  this  lan- 
guage. It  cannot  be  denied  that  a  tonnage  duty,  or  an  impost 
on  imports  or  exports,  may  be  levied  under  the  name  of  pilot 
dues  or  penalties;  and  certainly  it  is  the  thing,  and  not  the  name, 
which  is  to  be  considered.  But,  having  previously  stated  that,  in 
this  instance,  the  law  complained  of  does  not  pass  the  appropriate 
line  which  limits  laws  for  the  regulation  of  pilots  and  pilotage, 
the  suggestion  that  this  law  levies  a  duty  on  tonnage  or  on  im- 
ports or  exports  is  not  admissible;  and,  if  so,  it  also  follows  that 
this  law  is  not  repugnant  to  the  first  clause  of  the  eighth  section 
of  the  first  article  of  the  constitution,  which  declares  that  all 
duties,  imposrt;s,  and  excises  shall  be  uniform  throughout  the 
United  States;  for,  if  it  is  not  to  be  deemed  a  law  levying  a  duty, 
impost,  or  excise,  the  want  of  uniformity  throughout  the  United 
States  is  not  objectionable.  Indeed,  the  necessity  of  conforming 
regulations  of  pilotage  to  the  local  peculiarities  of  each  port,  and 
the  consequent  impossibility  of  having  its  charges  uniform 
throughout  the  United  States,  would  be  sufficient  of  itself  to  prove 
that  they  could  not  ha\"e  been  intended  to  be  embraced  within 
this  clause  of  the  constitution;  for  it  cannot  be  supposed  uni- 
formity was  required,  when  it  must  have  been  known  to  be  im- 
practicable. 

It  is  further  objected  that  this  law  is  repugnant  to  the  fifth 
clause  of  the  ninth  section  of  the  first  article  of  the  constitution, 


COOLEY  V.   BOARD  OF  WARDENS  OF   PHILADELPHIA.    239 

namely:  "No  preference  shall  be  given,  by  any  regulation  of 
commerce  or  revenue,  to  the  ports  of  one  State  over  those  of  an- 
other; nor  shall  vessels,  to  or  from  one  State,  be  obliged  to  enter, 
clear,  or  pay  duties  in  another." 

But,  as  already  stated,  pilotage  fees  are  not  duties  within  the 
meaning  of  the  constitution;  and,  certainly,  Pennsylvania  does 
not  give  a  preference  to  the  port  of  Philadelphia,  by  requiring  the 
masters,  owners,  or  consignees  of  vessels  sailing  to  or  from  that 
port,  to  pay  the  charges  imposed  by  the  twenty-ninth  section  of 
the  act  of  1803.  It  is  an  objection  to,  and  not  a  ground  of  prefer- 
ence of  a  port,  that  a  charge  of  this  kind  must  be  borne  by  vessels 
entering  it;  and,  accordingly,  the  interests  of  the  port  require, 
and  generally  produce,  such  alleviations  of  these  charges  as  its 
growing  commerce  from  time  to  time  renders  consistent  with  the 
general  policy  of  the  pilot  laws.  This  State,  by  its  act  of  the  24th 
of  March,  1851,  has  essentially  modified  the  law  of  1803,  and  fur- 
ther exempted  many  vessels  from  the  charge  now  in  question. 
Similar  changes  may  be  observed  in  the  laws  of  New  York,  Massa- 
chusetts, and  other  commercial  States,  and  they  undoubtedly 
spring  from  the  conviction  that  burdens  of  this  kind,  instead  of 
operating  to  give  a  preference  to  a  port,  tend  to  check  its  com- 
merce, and  that  sound  policy  requires  them  to  be  lessened  and  re- 
moved as  early  as  the  necessities  of  the  system  will  allow. 

In  addition  to  what  has  been  said  respecting  each  of  these  con- 
stitutional objections  to  this  law,  it  may  be  observed  that  similar 
laws  have  existed  and  been  practised  on  in  the  States  since  the 
adoption  of  the  federal  constitution;  that,  by  the  act  of  the  7th 
of  August,  1789,  1  Stats,  at  Large,  54,  congress  declared  that  all 
pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports  of  the  United 
States,  shall  continue  to  be  regulated  in  conformity  with  the  exist- 
ing laws  of  the  States,  etc.;  and  that  this  contemporaneous  con- 
struction of  the  constitution  since  acted  on  with  such  uniformity 
in  a  matter  of  much  public  interest  and  importance,  is  entitled 
to  great  weight,  in  determining  whether  such  a  law  is  repug- 
nant to  the  constitution,  as  levying  a  duty  not  uniform  through- 
out the  United  States,  or,  as  giving  a  preference  to  the  ports  of 
one  State  over  those  of  another,  or,  as  obliging  vessels  to  or  from 
one  State  to  enter,  clear,  or  pay  duties  in  another.  Stuart  v. 
Laird,  1  Cranch,  299;  Martin  v.  Hunter,  1  Wheat.,  304;  Cohens  v. 
The  Commonwealth  of  Virginia,  6  Wheat.,  264;  Prigg  v.  The 
Commonwealth  of  Pennsylvanina,  16  Pet.,  621. 

The  opinion  of  the  court  is,  that  the  law  now  in  question  is 


240  CASES  ON  CONSTITUTIONAL  LAW. 

not  repugnant  to  either  of  the  above-mentioned  clauses  of  the 
eonatitution. 

It  remains  to  consider  the  objection  that  it  is  repugnant  to  the 
third  clause  of  the  eighth  section  of  the  first  article.  "The  con- 
gress shall  have  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes." 

That  the  power  to  regulate  commerce  includes  the  regulation 
of  navigation,  we  consider  settled.  And  when  we  look  to  the 
nature  of  the  service  performed  by  pilots,  to  the  relations  which 
that  service  and  its  compensations  bear  to  navigation  between  the 
several  States,  and  between  the  ports  of  the  United  States  and 
foreign  countries,  we  are  brought  to  the  conclusion,  that  the 
regulation  of  the  qualifications  of  pilots,  of  the  modes  and  times 
of  offering  and  rendering  their  services,  of  the  responsibilities 
which  shall  rest  upon  them,  of  the  powers  they  shall  possess,  of 
the  compensation  they  may  demand,  and  of  the  penalties  by  which 
their  rights  and  duties  may  be  enforced,  do  constitute  regulations 
of  navigation,  and  consequently  of  commerce,  within  the  just 
meaning  of  this  clause  of  the  constitution. 

The  power  to  regulate  navigation  is  the  power  to  prescribe  rules 
in  conformity  with  which  navigation  must  be  carried  on.  It  ex- 
tends to  the  persons  who  conduct  it,  as  well  as  to  the  instruments 
used.  Accordingly,  the  first  congress  assembled  under  the  con- 
stitution passed  laws,  requiring  the  masters  of  ships  and  vessels 
of  the  United  States  to  be  citizens  of  the  United  States,  and  estab- 
lished many  rules  for  the  government  and  regulation  of  officers 
and  seamen.  1  Stats,  at  Large,  55,  131.  These  have  been  from 
time  to  time  added  to  and  changed,  and  we  are  not  aware  that 
their  validity  has  been  questioned. 

Now,  a  pilot,  so  far  as  respects  the  navigation  of  the  vessel  in 
that  part  of  the  voyage  which  is  his  pilotage-ground,  is  the  tem- 
porary master  charged  with  the  safety  of  the  vessel  and  cargo,  and 
of  the  lives  of  those  on  board,  and  intrusted  with  the  command  of 
the  crew.  He  is  not  only  one  of  the  persons  engaged  in  navigation, 
but  he  occupies  a  most  important  and  responsible  place  among 
those  thus  engaged.  And  if  congress  has  power  to  regulate  the 
seamen  who  assist  the  pilot  in  the  management  of  the  vessel,  a 
power  never  denied,  we  can  perceive  no  valid  reason  why  the  pilot 
should  be  beyond  the  reach  of  the  same  power.  It  is  true  that, 
according  to  the  usages  of  modern  commerce  on  the  ocean,  the  pilot 
is  on  board  only  during  a  part  of  the  voyage  between  ports  of  dif- 
ferent States,  or  between  ports  of  the  United  States  and  foreign 
countries;  but  if  he  is  on  board  for  such  a  purpose  and  during  so 


COOLEY  V.  BOARD  OF  WARDENS  OF  PHILADELPHIA.    241 

much  of  the  voyage  as  to  be  engaged  in  navigation,  the  power  to 
regulate  navigation  extends  to  him  while  thus  engaged,  as  clearly 
as  it  would  if  he  were  to  remain  on  board  throughout  the  whole 
passage,  from  port  to  port.  For  it  is  a  power  which  extends  to 
every  part  of  the  voyage,  and  may  regulate  those  who  conduct  or 
assist  in  conducting  navigation  in  one  part  of  a  voyage  as  much 
as  in  another  part,  or  during  the  whole  voyage. 

Nor  should  it  be  lost  sight  of,  that  this  subject  of  the  regulation 
of  pilots  and  pilotage  has  an  intimate  connection  with,  and  an 
important  relation  to,  the  general  subject  of  commerce  with  for- 
eign nations  and  among  the  several  States,  over  which  it  was  one 
main  object  of  the  constitution  to  create  a  national  control. 
Conflicts  between  the  laws  of  neighboring  States,  and  discrimina- 
tions favorable  or  adverse  to  commerce  with  particular  foreign 
nations,  might  be  created  by  state  laws  regulating  pilotage,  deeply 
affecting  that  equality  of  commercial  rights, .  and  that  freedom 
from  state  interference,  which  those  who  formed  the  constitution 
were  so  anxious  to  secure,  and  which  the  experience  of  more  than 
half  a  century  has  taught  us  to  value  so  highly.  The  apprehen- 
sion of  this  danger  is  not  speculative  merely.  For,  in  1837,  con- 
gress actually  interposed  to  relieve  the  commerce  of  the  country 
from  serious  embarrassment,  arising  from  the  laws  of  different 
States,  situate  upon  waters  which  are  the  boundary  between  them. 
This  was  done  by  an  enactment  of  the  2d  of  March,  1837,^  in 
the  following  words: — 

"Be  it  enacted,  that  it  shall  and  may  be  lawful  for  the  master 
or  commander  of  any  vessel  coming  into  or  going  out  of  any  port 
situate  upon  waters  which  are  the  boundary  between  two  States, 
to  employ  any  pilot  duly  licensed  or  authorized  by  the  laws  of 
either  of  the  States  bounded  on  the  said  waters,  to  pilot  said  vessel 
to  or  from  said  port,  any  law,  usage,  or  custom  to  the  contrary 
notwithstanding." 

The  act  of  1789,  1  Stats,  at  Large,  54,  already  referred  to,  con- 
tains a  clear  legislati'^e  exposition  of  the  constitution  by  the  first 
congress,  to  the  effect  that  the  power  to  regulate  pilots  was  con- 
ferred on  congress  by  the  constitution;  as  does  also  the  act  of 
March  the  2d,  1837,  the  terms  of  which  have  just  been  given.  The 
weight  to  be  allowed  to  this  contemporaneous  construction,  and 
the  practice  of  congress  under  it,  has,  in  another  connection,  been 
adverted  to.  And  a  majority  of  the  court  are  of  opinion,  that  a 
regulation  of  pilots  is  a  regulation  of  commerce,  within  the  grant 
to  congress  of  the  commercial  power,  contained  in  the  third  clause 
of  the  eighth  section  of  the  first  article  of  the  constitution. 
16  1  5  Stats,  at  Large,  153. 


242  CASES  ON  CONSTITUTIONAL  LAW. 

It  becomes  necessary,  therefore,  to  consider  whether  this  law  of 
Pennsylvania,  being  a  regulation  of  commerce,  is  valid. 

The  act  of  congress  of  the  7th  of  August,  1789,  §  4,  is  as 
follows: — 

"That  all  pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports  of 
the  United  States  shall  continue  to  be  regulated  in  conformity 
with  the  existing  laws  of  the  States,  respectively,  wherein  such 
pilots  may  be,  or  with  such  laws  as  the  States  may  respectively 
hereafter  enact  for  the  purpose,  until  further  legislative  provision 
shall  be  made  by  congress." 

If  the  law  of  Pennsylvania,  now  in  question,  had  been  in  exist- 
ence ait  the  date  of  this  act  of  congress,  we  might  hold  it  to  have 
been  adopted  by  congress,  and  thus  made  a  law  of  the  United 
States,  and  so  valid.  Because  this  act  does,  in  effect,  give  the 
force  of  an  act  of  congress,  to  the  then  existing  state  laws  on  this 
subject,  so  long  as  they  should  continue  unrepealed  by  the  State 
which  enacted  them. 

But  the  law  on  which  these  actions  are  founded,  was  not  enacted 
till  1803.  What  effect  then  can  be  attributed  to  so  much  of  the 
act  of  1789  as  declares  that  pilots  shall  continue  to  be  regulated 
in  conformity  "with  such  laws  as  the  States  may  respectively  here- 
after enact  for  the  purpose,  until  further  legislative  provision 
shall  be  made  by  congress"? 

If  the  States  were  divested  of  the  power  to  legislate  on  this 
subject  by  the  grant  of  the  commercial  power  to  congress,  it  is 
plain  this  act  could  not  confer  upon  them  power  thus  to  legislate. 
If  the  constitution  excluded  the  States  from  making  any  law 
regulating  commerce,  certainly  congress  cannot  regrant,  or  in  any 
manner  reconvey  to  the  States  that  power.  And  yet  this  act  of 
1789  gives  its  sanction  only  to  laws  enacted  by  the  States.  This 
necessarily  implies  a  constitutional  power  to  legislate;  for  only  a 
rule  created  by  the  sovereign  power  of  a  State  acting  in  its  legis- 
lative capacity,  can  be  deemed  a  law  enacted  by  a  State;  and  if 
the  State  has  so  limited  its  sovereign  power  that  it  no  longer  ex- 
tends to  a  particular  subject,  manifestly  it  cannot,  in  any  proper 
sense,  be  said  to  enact  laws  thereon.  Entertaining  these  views, 
we  are  brought  directly  and  unavoidably  to  the  consideration  of 
the  question,  whether  the  grant  of  the  commercial  power  to  con- 
gress did  per  se  deprive  the  States  of  all  power  to  regulate  pilots. 
This  question  has  never  been  decided  by  this  court,  nor,  in  our 
judgment,  has  any  case  depending  upon  all  the  considerations 
which  must  govern  this  one,  come  before  this  court.  The  grant 
of  commercial  power  to   congress  does   not   contain   any  terms 


COOLEY  V.  BOARD  OF  WARDENS  OF  PHILADELPHIA.    248 

which  expressly  exclude  the  States  from  exercising  an  authority 
over  its  subject-matter.  If  they  are  excluded,  it  must  be  be- 
cause the  nature  of  the  power  thus  granted  to  congress  requires 
that  a  similar  authority  should  not  exist  in  the  States.  If  it  were 
conceded  on  the  one  side  that  the  nature  of  this  power,  like  that 
to  legislate  for  the  District  of  Columbia,  is  absolutely  and  totally 
repugnant  to  the  existence  of  similar  power  in  the  States,  proba- 
bly no  one  would  deny  that  the  grant  of  the  power  to  congress, 
as  effectually  and  perfectly  excludes  the  States  from  all  future 
legislation  on  the  subject,  as  if  express  words  had  been  used  to 
exclude  them.  And  on  the  other  hand,  if  it  were  admitted  that 
the  existence  of  this  power  in  congress,  like  the  power  of  taxa- 
tion, is  compatible  with  the  existence  of  a  similar  power  in  the 
States,  then  it  would  be  in  conformity  with  the  contemporary 
exposition  of  the  constitution  (Federalis-t,  No.  32),  and  with  the 
judicial  construction  given  from  time  to  time  by  this  courts  after 
the  most  deliberate  consideration,  to  hold  that  the  mere  grant 
of  such  a  power  to  congress,  did  not  imply  a  prohibition  on  the 
States  to  exercise  the  same  power;  that  it  is  not  the  mere  exist- 
ence of  such  a  power,  but  its  exercise  by  congress,  which  may  be 
incompatible  with  the  exercise  of  the  same  power  by  the  States, 
and  that  the  States  may  legislate  in  the  absence  of  congressional 
regulations.  Sturges  v.  Crowninshield,  4  Wheat.,  193;  Houston 
V.  Moore,  5  Wheat.,  1;  Wilson  v.  Blackbird  Creek  Co.,  2  Pet.,  251. 

The  diversities  of  opinion,  therefore,  which  have  existed  on  this 
subject  have  arisen  from  the  different  views  taken  of  the  nature 
of  this  power.  But  when  the  nature  of  a  power  like  this  is 
spoken  of,  when  it  is  said  that  the  nature  of  the  power  requires 
that  it  should  be  exercised  exclusively  by  congress,  it  must  be  in- 
tended to  refer  to  the  subjects  of  that  power,  and  to  say  they  are 
of  such  a  nature  as  to  require  exclusive  legislation  by  congress. 
Now,  the  power  to  regulate  commerce,  embraces  a  vast  field,  con- 
taining not  only  many,  but  exceedingly  various  subjects,  quite 
imlike  in  their  nature;  some  imperatively  demanding  a  single 
uniform  rule,  operating  equally  on  the  commerce  of  the  United 
States  in  every  port;  and  some,  like  the  subject  now  in  question, 
as  imperatively  demanding  that  diversity,  which  alone  can  meet 
the  local  necessities  of  navigation. 

Either  absolutely  to  affirm,  or  deny  that  the  nature  of  this 
power  requires  exclusive  legislation  by  congress,  is  to  lose  sight 
of  the  nature  of  the  subjects  of  this  power,  and  to  assert  con- 
cerning all  of  them,  what  is  really  applicable  but  to  a  part.  What- 
ever subjects  of  this  power  are  in  their  nature  national,  or  admit 


^44  CASES  ON  CONSTITUTIONAL  LAW. 

only  of  one  uniform  system,  or  plan  of  regulation,  may  justly  be 
said  to  be  of  such  a  nature  as  to  require  exclusive  legislation  by 
congress.  That  this  cannot  be  affirmed  of  laws  for  the  regulation 
of  pilots  and  pilotage,  is  plain.  The  act  of  1789  contains  a  clear 
and  authoritative  declaration  by  the  first  congress,  that  the  nature 
of  this  subject  is  such  that  until  congress  should  find  it  necessarj' 
to  exert  its  power,  it  should  be  left  to  the  legislation  of  the  States; 
that  it  is  local  and  not  national;  that  it  is  likely  to  be  the  best 
provided  for,  not  by  one  system,  or  plan  of  regulation,  but  by  as 
many  as  the  legislative  discretion  of  the  several  States  should  deem 
applicable  to  the  local  peculiarities  of  the  ports  within  their  limits. 
Viewed  in  this  light,  so  much  of  this  act  of  1789,  as  declares 
that  pilots  shall  continue  to  be  regulated  '%y  such  laws  as  the 
States  may  respectively  hereafter  enact  for  that  purpose,"  instead 
of  being  held  to  be  inoperative,  as  an  attempt  to  confer  on  the 
States  a  power  to  legislate,  of  which  the  constitution  had  deprived 
them,  is  allowed  an  appropriate  and  important  signification.  It 
manifests  the  understanding  of  congress,  at  the  outset  of  the  gov- 
ernment, that  the  nature  of  this  subject  is  not  such  as  to  require 
its  exclusive  legislation.  The  practice  of  the  States,  and  of  the 
national  government,  has  been  in  conformity  with  this  declara- 
tion, from  the  origin  of  the  national  government  to  this  time; 
and  the  nature  of  the  subject  when  examined,  is  such  as  to  leave 
no  doubt  of  the  superior  fitness  and  propriety,  not  to  say  the  ab- 
solute necessity,  of  different  systems  of  regulation,  drawn  from 
local  knowledge  and  experience,  and  conformed  to  local  wants. 
How,  then,  can  we  say  that,  by  the  mere  grant  of  power  to  regu- 
late commerce,  the  States  are  deprived  of  all  the  power  to  legis- 
late on  this  subject,  because  from  the  nature  of  the  power  the 
legislation  of  congress  must  be  exclusive?  This  would  be  to  affirm 
that  the  nature  of  the  power  is,  in  this  case,  something  different 
from  the  nature  of  the  subject  to  which,  in  such  case,  the  power 
extends,  and  that  the  nature  of  the  power  necessarily  demands,  in 
all  cases,  exclusive  legislation  by  congress,  while  the  nature  of  one 
of  the  subjects  of  that  power,  not  only  does  not  require  such  ex- 
clusive legislation,  but  may  be  best  provided  for  by  many  different 
systems  enacted  by  the  States,  in  conformity  with  the  circum- 
stances of  the  ports  within  their  limits.  In  construing  an  instru- 
ment designed  for  the  formation  of  a  government,  and  in  deter- 
mining the  extent  of  one  of  its  important  grants  of  power  to 
legislate,  we  can  make  no  such  distinction  between  the  nature  of 
the  power  and  the  nature  of  the  subject  on  which  that  power  was 
intended  practically  to  operate,  nor  consider  the  grant  more  ex- 


COOLEY  V.  BOARD  OF  WARDENS  OF  PHILADELPHIA.    245 

tensive  by  affirming  of  the  power,  what  is  not  true  of  its  subject 
now  in  question. 

It  is  the  opinion  of  a  majority  of  the  court  that  the  mere  grant 
to  congress  of  the  power  to  regulate  commerce,  did  not  deprive 
the  States  of  power  to  regulate  pilots,  and  that  although  congress 
has  legislated  on  this  subject,  its  legislation  manifests  an  inten- 
tion, with  a  single  exception,  not  to  regulate  this  subject,  but  to 
leave  its  regulation  to  the  several  States.  To  these  precise  ques- 
tions, which  are  all  we  are  called  on  to  decide,  this  opinion  must 
be  understood  to  be  confined.  It  does  not  extend  to  the  question 
what  other  subjects,  under  the  commercial  power,  are  within  the 
exclusive  control  of  congress,  or  may  be  regulated  by  the  States 
in  the  absence  of  all  congressional  legislation;  nor  to  the  general 
question,  how  far  any  regulation  of  a  subject  by  congress  may  be 
deemed  to  operate  as  an  exclusion  of  all  legislation  by  the  States 
upon  the  same  subject.  We  decide  the  precise  questions  before  us, 
upon  what  we  deem  sound  principles,  applicable  to  this  particular 
subject  in  the  state  in  which  the  legislation  of  congress  has  left 
it.    We  go  no  further. 

We  have  not  adverted  to  the  practical  consequences  of  holding 
that  the  States  possess  no  power  to  legislate  for  the  regulation  of 
pilots,  though  in  our  apprehension  these  would  be  of  the  most 
serious  importance.  For  more  than  sixty  years  this  subject  has 
been  acted  on  by  the  States,  and  the  systems  of  some  of  them 
created  and  of  others  essentially  modified  during  that  period.  To 
hold  that  pilotage  fees  and  penalties  demanded  and  received  dur- 
ing that  time  have  been  illegally  exacted,  under  color  of  void  laws, 
would  work  an  amount  of  mischief  which  a  clear  conviction  of 
constitutional  duty,  if  entertained,  must  force  us  to  occasion,  but 
which  could  be  viewed  by  no  just  mind  without  deep  regret.  Nor 
would  the  mischief  be  limited  to  the  past.  If  congress  were  now 
to  pass  a  law  adopting  the  existing  state  laws,  if  enacted  without 
authority,  and  in  violation  of  the  constitution,  it  would  seem  to 
us  to  be  a  new  and  questionable  mode  of  legislation. 

If  the  grant  of  commercial  power  in  the  constitution  has  de- 
prived the  States  of  all  power  to  legislate  for  the  regulation  of 
pilots,  if  their  laws  on  this  subject  are  mere  usurpations  upon  the 
exclusive  power  of  the  general  government,  and  utterly  void,  it 
may  be  doubted  whether  congress  could,  with  propriety,  recognize 
them  as  laws,  and  adopt  them  as  its  own  acts;  and  how  are  the 
legislatures  of  the  States  to  proceed  in  future,  to  watch  over  and 
amend  these  laws,  as  the  progressive  wants  of  a  growing  com- 
merce will  require,  when  the  members  of  those  legislatures  are 


246  CASES  ON  CONSTITUTIONAL  LAW. 

made  aware  that  they  cannot  legislate  on  this  subject  without  vio- 
lating the  oaths  they  have  taken  to  support  the  constitution  of 
the  United  States? 

We  are  of  opinion  that  this  state  law  was  enacted  by  virtue  of  a 
power,  residing  in  the  State  to  legislate,  that  it  is  not  in  conflict 
with  any  law  of  congress;  that  it  does  not  interfere  with  any 
system  which  congress  has  established  by  making  regulations,  or 
by  intentionally  leaving  individuals  to  their  own  unrestricted 
action;  that  this  law  is  therefore  valid,  and  the  judgment  of  the 
supreme  court  of  Pennsylvania  in  each  case  must  be  affirmed. 

McLean,  J.,  and  Wayne,  J.,  dissented;  and  Daniel,  J.,  although 
he  concurred  in  the  judgment  of  the  court,  yet  dissented  from  its 
reasoning. 

[Messrs.  Justices  McLean  and  Daniel  delivered  separate 
opinions.] 


CASE   OF   THE   STATE   FKEIGHT    TAX. 
EEADING    EAILEOAD    COMPANY    v.    PENNSYLVANIA. 

15  Wallace,  232.    Decided  1872. 
[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Mb.  Justice  Strong  delivered  the  opinion  of  the  court. 

We  are  called  upon,  in  this  case,  to  review  a  judgment  of  the 
Supreme  Court  of  Pennsylvania,  affirming  the  validity  of  a  stat- 
ute of  the  State,  which  the  plaintiffs  in  error  allege  to  be  repug- 
nant to  the  Federal  Constitution. 

The  case  presents  the  question  whether  the  statute  in  ques- 
tion,— so  far  as  it  imposes  a  tax  upon  freight  taken  up  within  the 
State  and  carried  out  of  it,  or  taken  up  outside  the  State  and  de- 
livered within  it,  or,  in  different  words,  upon  all  freight  other 
than  that  taken  up  and  delivered  within  the  State, — is  not  repug- 
nant to  the  provision  of  the  Constitution  of  the  United  States 
which  ordains  "that  Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  States,"  or  in 
conflict  with  the  provision  that  "no  State  shall,  without  the  con- 
sent of  Congress,  lay  any  imposts  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws." 


THE  STATE  FREIGHT  TAX.  247 

The  question  is  a  grave  one.  It  calls  upon  us  to  trace  the  line, 
always  difficult  to  be  traced,  between  the  limits  of  State  sov- 
ereignty in  imposing  taxation,  and  the  power  and  duty  of  the 
Federal  government  to  protect  and  regulate  interstate  commerce. 
While,  upon  the  one  hand,  it  is  of  the  utmost  importance  that  the 
State  should  possess  the  power  to  raise  revenue  for  all  the  pur- 
poses of  a  State  government,  by  any  means,  and  in  any  manner 
not  inconsistent  with  the  powers  which  the  people  of  the  States 
have  conferred  upon  the  General  Gjovernment,  it  is  equally  im- 
portant that  the  domain  of  the  latter  should  be  preserved  free 
from  invasion,  and  that  no  State  legislation  should  be  sustained 
which  defeats  the  avowed  purposes  of  the  Federal  Constitution, 
or  which  assumes  to  regulate,  or  control  subjects  committed  by 
that  Constitution  exclusively  to  the  regulation  of  Congress. 

Before  proceeding,^  however,  to  a  consideration  of  the  direct 
question  whether  the  statute  is  in  direct  conflict  with  any  pro- 
vision of  the  Constitution  of  the  United  States,  it  is  necessary  to 
have  a  clear  apprehension  of  the  subject  and  the  nature  of  the  tax 
imposed  by  it.  It  has  repeatedly  been  held  that  the  constitution- 
ality, or  unconstitutionality  of  a  State  tax  is  to  be  determined, 
not  by  the  form  or  agency  through  which  it  is  to  be  collected,  but 
by  the  subject  upon  which  the  burden  is  laid.  This  was  decided 
in  the  cases  of  Bank  of  Commerce  v.  New  York  City,^  in  The 
Bank  Tax  Case,*  Society  for  Savings  v.  Coite,^  and  Provident 
Bank  v.  Massachusetts.*  In  all  these  cases  it  appeared  that  the 
bank  was  required  by  the  statute  to  pay  the  tax,  but  the  decisions 
turned  upon  the  question,  what  was  the  subject  of  the  tax,  upon 
what  did  the  burden  really  rest,  not  upon  the  question  from  whom 
the  State  exacted  payment  into  its  treasury.  Hence,  where  it 
appeared  that  the  ultimate  burden  rested  upon  the  property  of  the 
bank  invested  in  United  States  securities,  it  was  held  unconsti- 
tutional, but  where  it  rested  upon  the  franchise  of  the  bank,  it 
was  sustained. 

Upon  what,  then,  is  the  tax  imposed  by  the  act  of  August  25th, 
1864,  to  be  considered  as  laid?  Where  does  the  substantial  bur- 
den rest?  Very  plainly  it  was  not  intended  to  be,  nor  is  it  in  fact, 
a  tax  upon  the  franchise  of  the  carrying  companies,  or  upon  their 
property,  or  upon  their  business  measured  by  the  number  of  tons 
of  freight  carried.  On  the  contrary,  it  is  expressly  laid  upon  the 
freight  carried.  The  companies  are  required  to  pay  to  the  State 
treasurer  for  the  use  of  the  Commonwealth,  "on  each  two  thousand 

1  2  Black,  620.  3  6  Id.,  594. 

2  2  Wallace,  200.  *  lb.,  611. 


248  CASES  ON  CONSTITUTIONAL  LAW. 

pounds  of  freight  so  carried,"  a  tax  at  the  specified  rate.  And 
this  tax  is  not  proportioned  to  the  business  done  in  transporta- 
tion. It  is  the  same  whether  the  freight  be  moved  one  mile  or 
three  hundred.  If  freight  be  put  upon  a  road  and  carried  at  all, 
tax  is  to  be  paid  upon  it,  the  amount  of  the  tax  being  determined 
by  the  character  of  the  freight.  And  when  it  is  observed  that  the 
act  provides  "where  the  same  freight  shall  be  carried  over  and 
upon  different  but  continuous  lines,  said  freight  shall  be  charge- 
able with  tax  as  if  it  had  been  carried  upon  one  line,  and  the  whole 
tax  shall  be  paid  by  such  one  of  said  companies  as  the  State 
treasurer  may  select  and  notify  thereof,"  no  room  is  left  for  doubt. 
The  provision  demonstrates  that  the  tax  has  no  reference  to  the 
business  of  the  companies.  In  the  case  of  connected  lines  thou- 
sands of  tons  may  be  carried  over  the  line  of  one  company  without 
any  liability  of  that  company  to  pay  the  tax.  The  State  treasurer 
is  to  decide  which  of  several  shall  pay  the  whole.  There  is  still 
another  provision  in  the  act  which  shows  that  the  burden  of  the 
tax  was  not  intended  to  be  imposed  upon  the  companies  desig- 
nated by  it,  neither  upon  their  franchises,  their  property,  or 
their  business.  The  provision  is  as  follows:  "Corporations  whose 
lines  of  improvements  are  used  by  others  for  the  transportation 
of  freight,  and  whose  only  earnings  arise  from  tolls  charged  for 
such  use,  are  authorized  to  add  the  tax  hereby  imposed  to  said 
tolls,  and  to  collect  the  same  therewith."  Evidently  this  con- 
templates a  liability  for  the  tax  beyond  that  of  the  company  re- 
quired to  pay  it  into  the  treasury,  and  it  authorizes  the  burden 
to  be  laid  upon  the  freight  carried,  in  exemption  of  the  corpora- 
tion owning  the  roadway.  It  carries  the  tax  over  and  beyond  the 
carrier  to  the  thing  carried.  Improvement  companies,  not  them- 
selves authorized  to  act  as  carriers,  but  having  only  power  to  con- 
struct and  maintain  roadways,  charging  tolls  for  the  use  thereof, 
are  generally  limited  by  their  charters  in  the  rates  of  toll  they  are 
allowed  to  charge.  Hence  the  right  to  increase  the  tolls  to  the 
extent  of  the  tax  was  given  them  in  order  that  the  tax  might  come 
from  the  freight  transported,  and  not  from  the  treasury  of  the 
companies.  It  required  no  such  grant  to  companies  which  not 
only  own  their  roadway,  but  have  the  right  to  transport  thereon. 
Though  the  tolls  they  may  exact  are  limited,  their  charges  for 
carriage  are  not.  They  can,  therefore,  add  the  tax  to  the  charge 
for  transportation  without  further  authority.^     In  view  of  these 

5  Vide    Boyle    v.    The    Reading     ley  Railroad  Co.'s  Appeal,  62  Id., 
Railroad    Company,    54    Pennsyl-     218. 
vania  State,  310;  Cumberland  Val- 


THE  STATE  FREIGHT  TA^.  249 

provisions  of  the  statute  it  is  impossible  to  escape  from  the  con- 
viction that  the  burden  of  the  tax  rests  upon  the  freight  trans- 
ported, or  upon  the  consignor  or  consignee  of  the  freight  (im- 
posed because  the  freight  is  transported),  and  that  the  company 
authorized  to  collect  the  tax  and  required  to  pay  it  into  the  State 
treasury  is,  in  effect,  only  a  tax-gatherer.  The  practical  operation 
of  the  law  has  been  well  illustrated  by  another*'  when  commenting 
upon  a  statute  of  the  State  of  Delaware  very  similar  to  the  one 
now  under  consideration.  He  said,  "The  position  of  the  carrier 
under  this  law  is  substantially  that  of  one  to  whom  public  taxes 
are  farmed  out — who  undertakes  by  contract  to  advance  to  the 
government  a  required  revenue  with  power  by  suit  or  distress  to 
collect  a  like  amount  out  of  those  upon  whom  the  tax  is  laid.  The 
only  imaginable  difference  is,  that,  in  the  case  of  taxes  farmed 
out,  the  obligation  to  account  to  the  government  is  voluntarily 
assumed  by  contract,  and  not  imposed  by  law,  as  upon  the  carrier 
under  this  act;  also,  that  different  means  are  provided  for  raising 
the  tax  out  of  those  ultimately  chargeable  with  it." 

Considering  it,  then,  as  manifest  that  the  tax  demanded  by  the 
act  is  imposed,  not  upon  the  company,  but  upon  the  freight  car- 
ried, and  because  carried,  we  proceed  to  inquire  whether,  so  far 
as  it  affects  commodities  transported  through  the  State,  or  from 
points  without  the  State  to  points  within  it,  or  from  points  within 
the  State  to  points  without  it,  the  act  is  a  regulation  of  interstate 
commerce.  Beyond  all  question  the  transportation  of  freight,  or 
of  the  subjects  of  commerce,  for  the  purpose  of  exchange  or  sale, 
is  a  constituent  of  commerce  itself.  This  has  never  been  doubted, 
and  probably  the  transportation  of  articles  of  trade  from  one 
State  to  another  was  the  prominent  idea  in  the  minds  of  the 
framers  of  the  Constitution,  when  to  Congress  was  committed  the 
power  to  regulate  commerce  among  the  several  States.  A  power 
to  prevent  embarrassing  restrictions  by  any  State  was  the  thing 
desired.  The  power  was  given  by  the  same  words  and  in  the 
same  clause  by  which  was  conferred  power  to  regulate  commerce 
with  foreign  nations.  It  would  be  absurd  to  suppose  that  the 
transmission  of  the  subjects  of  trade  from  the  State  to  the  buyer, 
or  from  the  place  of  production  to  the  market,  was  not  contem- 
plated, for  without  that  there  could  be  no  consummated  trade 
either  with  foreign  nations  or  among  the  States.  In  his  work 
on  the  Constitution,^  Judge  Story  asserts  that  the  sense  in  which 

6  Chancellor  Bates  in  Clarke  v.         7  §  1057. 
Philadelphia,      Wilmington,      and 
Baltimore  Railroad  Co. 


250  CASES  ON  CONSTITUTIONAL  LAW. 

the  word  commerce  is  used  in  that  instrument  includes  not  only 
traffic,  but  intercourse  and  navigation.  And  in  the  Passenger 
Cases,^  it  was  said:  "Commerce  consists  in  selling  the  superfluity, 
in  purchasing  articles  of  necessity,  as  well  productions  as  manu- 
factures, in  buying  from  one  nation  and  selling  to  another,  or  in 
transporting  the  merchandise  from  the  seller  to  the  buyer  to  gain 
the  freight."  Xor  does  it  make  any  difference  whether  this  inter- 
change of  commodities  is  by  land  or  by  water.  In  either  case 
the  bringing  of  the  goods  from  the  seller  to  the  buyer  is  com- 
merce. Among  the  States  it  must  have  been  principally  by  land 
when  the  Constitution  was  adopted. 

Then,  why  is  not  a  tax  upon  freight  transported  from  State 
to  State  a  regulation  of  interstate  transportation,  and,  therefore, 
a  regulation  of  commerce  among  the  States?  Is  it  not  prescribing 
a  rule  for  the  transporter,  by  which  he  is  to  be  controlled  in 
bringing  the  subjects  of  commerce  into  the  State,  and  in  taking 
them  out?  The  present  case  is  the  best  possible  illustra- 
tion. The  legislature  of  Pennsylvania  has  in  effect  declared 
that  every  ton  of  freight  taken  up  within  the  State  and  carried 
out,  or  taken  up  in  other  States  and  brought  within  her  limits, 
shall  pay  a  specified  tax.  The  payment  of  that  tax  is  a  condition 
upon  which  is  made  dependent  the  prosecution  of  this  branch  of 
commerce.  And  as  there  is  no  limit  to  the  rate  of  taxation  she 
may  impose,  if  she  can  tax  at  all,  it  is  obvious  the  condition 
may  be  made  so  onerous  that  an  interchange  of  commodities  with 
other  States  would  be  rendered  impossible.  The  same  power  that 
may  impose  a  tax  of  two  cents  per  ton  upon  coal  carried  out  of 
the  State,  may  impose  one  of  five  dollars.  Such  an  imposition, 
whether  large  or  small,  is  a  restraint  of  the  privilege  or  right 
to  have  the  subjects  of  commerce  pass  freely  from  one  State 
to  another  without  being  obstructed  by  the  intervention  of  State 
lines.  It  would  hardly  be  maintained,  we  think,  that  had  the 
State  established  custom-houses  on  her  borders,  wherever  a  rail- 
road or  canal  comes  to  the  State  line,  and  demanded  at  these 
houses  a  duty  for  allowing  merchandise  to  enter  or  to  leave  the 
State  upon  one  of  those  railroads  or  canals,  such  an  imposition 
would  not  have  been  a  regulation  of  commerce  with  her  sister 
States.  Yet  it  is  difficult  to  see  any  substantial  difference  be- 
tween the  supposed  case  and  the  one  we  have  in  hand.  The 
goods  of  no  citizen  of  Xew  York,  New  Jersey,  Ohio,  or  of  any 
other  State,  may  be  placed  upon  a  canal,  railroad,  or  steamboat 

8  7  Howard,  416. 


THE  STATE  FREIGHT  TAX.  251 

withtn  the  State  for  transportation  any  distance,  either  into  or 
out  of  the  State,  without  being  subjected  to  the  burden.  Nor 
can  it  make  any  difference  that  the  legislative  purpose  was  to 
raise  money  for  the  support  of  the  State  government,  and  not 
to  regulate  transportation.  It  is  not  the  purpose  of  the  law, 
but  its  effect,  which  we  are  now  considering.  Nor  is  it  at  all 
material  that  the  tax  is  levied  upon  all  freight,  as  well  that 
which  is  wholly  internal  as  that  embarked  in  interstate  trade. 
We  are  not  at  this  moment  inquiring  further  than  whether  tax- 
ing goods  carried  because  they  are  carried  is  a  regulation  of  car- 
riage. The  State  may  tax  its  internal  commerce,  but  if  an  act 
to  tax  interstate  or  foreign  commerce  is  unconstitutional,  it  is  not 
cured  by  including  in  its  provisions  subjects  within  the  domain 
of  the  State.  Nor  is  a  rule  prescribed  for  carriage  of  goods 
through,  out  of,  or  into  a  State  any  the  less  a  regulation  of  trans- 
portation because  the  same  rule  may  be  applied  to  carriage  which 
is  wholly  internal.  Doubtless  a  State  may  regulate  its  internal 
commerce  as  it  pleases.  If  a  State  chooses  to  exact  conditions 
for  allowing  the  passage  or  carriage  of  persons  or  freight  through 
it  into  another  State,  the  nature  of  the  exaction  is  not  changed 
by  adding  to  it  similar  conditions  for  allowing  transportation 
wholly  within  the  State. 

We  may  notice  here  a  position  taken  by  the  defendants  in 
error,  and  stoutly  defended  in  the  argument,  that  the  tax  levied, 
instead  of  being  a  regulation  of  commerce,  is  compensation  for 
the  use  of  the  works  of  internal  improvement  constructed  under 
the  authority  of  the  State  and  by  virtue  of  franchises  granted 
by  the  State;  in  other  words,  that  it  is  a  toll  for  the  use  of  the 
highways,  a  part  of  which,  in  right  of  her  eminent  domain,  the 
State  may  order  to  be  paid  into  her  treasury.     .     .     . 

All  this,  however,  is  abstract  and  apart  from  the  case  before 
us.  That  the  act  of  1864  was  not  intended  to  assert  a  claim  for 
the  use  of  the  public  works,  or  a  claim  for  a  part  of  the  tolls,  is 
too  apparent  to  escape  observation.  The  tax  was  imposed  upon 
freight  carried  by  steamboat  companies,  whether  incorporated  by 
the  State  or  not,  and  whether  exercising  privileges  granted  by  the 
State  or  not.  It  reaches  freight  passing  up  and  down  the  Dela- 
ware and  the  Ohio  rivers  carried  by  companies  who  derive  no 
rights  from  grants  of  Pennsylvania,  who  are  exercising  no  part 
of  her  eminent  domain;  and,  as  we  have  noticed  heretofore,  the 
tax  is  not  proportioned  to  services  rendered,  or  to  the  use  made 
of  canals  or  railways.  It  is  the  same  whether  the  transportation 
be  long  or  short.    It  must  therefore  be  considered  an  exaction,  in 


252  CASES   ON  CONSTITUTIONAL   LAW. 

right  of  alleged  sovereignty,  from  freight  transported,  or  the  right 
of  tralisportation  out  of,  or  into,  or  through  the  State — a  burden 
upon  interstate  intercourse. 

If,  then,  this  is  a  tax  upon  freight  carried  between  States,  and 
a  tax  because  of  its  transportation,  and  if  such  a  tax  is  in  effect 
a  regulation  of  interstate  commerce,  the  conclusion  seems  to  be 
inevitable  that  it  is  in  conflict  with  the  Constitution  of  the  United 
States.  It  is  not  necessary  to  the  present  case  to  go  at  large  into 
the  much-debated  question  whether  the  power  given  to  Congress 
by  the  Constitution  to  regulate  commerce  among  the  States  is  ex- 
clusive. In  the  earlier  decisions  of  this  court  it  was  said  to  have 
been  so  entirely  vested  in  Congress  that  no  part  of  it  can  be 
exercised  by  a  State.^  It  has,  indeed,  often  been  argued,  and 
sometimes  intimated,  by  the  court  that,  so  far  as  Congress  has 
not  legislated  on  the  subject,  the  States  may  legislate  respecting 
interstate  commerce.  Yet,  if  they  can,  why  may  they  not  add 
regulations  to  commerce  with  "foreign  nations  beyond  those  made 
by  Congress,  if  not  inconsistent  with  them,  for  the  power  over 
both  foreign  and  interstate  commerce  is  conferred  upon  the  Fed- 
eral Legislature  by  the  same  words.  And  certainly  it  has  never 
yet  been  decided  by  this  court  that  the  power  to  regulate  inter- 
state, as  well  as  foreign  commerce,  is  not  exclusively  in  Congress. 
Cases  that  have  sustained  State  lawSj  alleged  to  be  regulations  of 
commerce  among  the  States,  have  been  such  as  related  to  bridges 
or  dams  across  streams  wholly  within  a  State,  police  or  health 
laws,  or  subjects  of  a  kindred  nature,  not  strictly  commercial  reg- 
ulations. The  subjects  were  such,  as  in  Oilman  v.  Philadelphia,^ 
it  was  said  "can  be  best  regulated  by  rules  and  provisions  suggest- 
ed by  the  varying  circumstances  of  different  localities,  and  limited 
in  their  operation  to  such  localities  respectively."  However  this 
may  be,  the  rule  has  been  asserted  with  great  clearness,  that  when- 
ever the-  subjects  over  which  a  power  to  regulate  commerce  is  as- 
serted are  in  their  nature  national,  or  admit  of  one  uniform  sys- 
tem or  plan  of  regulation,  they  may  justly  be  said  to  be  of 
such  a  nature  as  to  require  exclusive  legislation  by  Congress.' 
Surely  transportation  of  passengers  or  merchandise  through  a 
State,  or  from  one  State  to  another,  is  of  this  nature.  It  is  of 
national  importance  that  over  that  subject  there  should  be  but 
one  regulating  power,  for  if  one  State  can  directly  tax  persons 

1  Gibbons  v.  Ogden,  9  Wheaton,  a  Cooley  v.  Port  Wardens,  12 
1;  Passenger  Cases,  7  Howard,  Howard,  299;  Oilman  v.  Philadel- 
283.  phia,  supra;  Crandall  v.  The  State 

2  3  Wallace,  713.  of  Nevada,  6  Wallace,  42. 


THE  STATE  FREIGHT  TAX.  253 

or  property  passing  through  it,  or  tax  them  indirectly  by  levying 
a  tax  upon  their  transportation,  every  other  may,  and  thus  com- 
mercial intercourse  between  States  remote  from  each  other  may 
be  destroyed.  The  produce  of  Western  States  may  thus  be  effect- 
ually excluded  from  Eastern  markets,  for  though  it  might  bear 
the  imposition  of  a  single  tax,  it  would  be  crushed  under  the  load 
of  many.  It  was  to  guard  against  the  possibility  of  such  com- 
mercial embarrassments,  no  doubt,  that  the  power  of  regulating 
commerce  among  the  States  was  conferred  upon  the  Federal  gov- 
ernment. 

In  Almy  v.  The  State  of  California,*  it  was  held  by  this  court 
that  a  law  of  the  State  imposing  a  tax  upon  bills  of  lading  for 
gold  or  silver  transported  from  that  State  to  any  port  or  place 
without  the  State,  was  substantially  a  tax  upon  the  transporta^ 
tion  itself,  and  was  therefore  unconstitutional.  True,  the  deci- 
sion was  rested  on  the  ground  that  it  was  a  tax  upon  exports,  and 
subsequently,  in  Woodruff  v.  Parham,'^  the  court  denied  the  cor- 
rectness of  the  reasons  given  for  the  decision;  but  they  said  at  the 
same  time  the  case  was  well  decided  for  another  reason,  viz.,  that 
such  a  tax  was  a  regulation  of  commerce — a  tax  imposed  upon 
the  transportation  of  goods  from  one  State  to  another,  over  the 
high  seas,  in  conflict  with  that  freedom  of  transit  of  goods  and 
persons  between  one  State  and  another,  which  is  within  the  rule 
laid  down  in  Crandall  v.  Nevada,®  and  with  th«  authority  of  Con- 
gress to  regulate  commerce  among  the  States. 

In  Crandall  v.  The  State  of  Nevada,  where  it  appeared  that 
the  legislature  of  the  State  had  enacted  that  there  should  ''he 
levied  and  collected  a  capitation  tax  of  one, dollar  upon  every 
person  leaving  the  State  by  any  railroad,  stage-coach,  or  other 
vehicle  engaged  or  employed  in  the  business  of  transporting  pas- 
sengers for  hire,"  and  required  the  proprietors,  owners,  and  cor- 
porations so  engaged  to  make  monthly  reports  of  the  number  of 
persons  carried,  and  to  pay  the  tax,  it  was  ruled  that  though  re- 
quired to  be  paid  by  the  carriers,  the  tax  was  a  tax  upon  passen- 
gers, for  the  privilege  of  being  carried  out  of  the  State,  and 
not  a  tax  on  the  business  of  the  carriers.  For  that  reason  it 
was  held  that  the  law  imposing  it  was  invalid,  as  in  conflict  with 
the  Constitution  of  the  United  States.  A  majority  of  the  court, 
it  is  true,  declined  to  rest  the  decision  upon  the  ground  that  the 
tax  was  a  regulation  of  interstate  commerce,  and  therefore  be- 
yond the  power  of  the  State  to  impose,  but  all  the  judges  agreed 

4  24  Howard,  169.  e  6  Id.,  35. 

6  8  Wallace,  123. 


254  CASES   ON  CONSTITUTIONAL  LAW. 

that  the  State  law  was  unconstitutional  and  void.  The  Chief  Jus- 
tice and  Mr.  Justice  Clifford  thought  the  judgment  should  have 
been  placed  exclusively  on  the  ground  that  the  act  of  the  State 
legislature  was  inconsistent  with  the  power  conferred  upon  Con- 
gress to  regulate  commerce  among  the  several  States,  and  it  does 
not  appear  that  the  other  judges  held  that  it  was  not  thus  in- 
consistent. In  any  view  of  the  case,  however,  it  decides  that  a 
State  cannot  tax  persons  for  passing  through,  or  out  of  it.  Inter- 
state transportation  of  passengers  is  beyond  the  reach  of  a  State 
legislature.  And  if  State  taxation  of  persons  passing  from  one 
State  to  another,  or  a  State  tax  upon  interstate  transportation 
of  passengers  is  unconstitutional,  a  fortiori,  if  possible,  is  a  State 
tax  upon  the  carriage  of  merchandise  from  State  to  State  in  con- 
flict with  the  Federal  Constitution.  Merchandise  is  the  sub- 
ject of  commerce.  Transportation  is  essential  to  commerce;  and 
every  burden  laid  upon  it  is  pro  tanto  a  restriction.  Whatever, 
therefore,  may  be  the  true  doctrine  respecting  the  exclusiveness  of 
the  power  vested  in  Congress  to  regulate  commerce  among  the 
States,  we  regard  it  as  established  that  no  State  can  impose  a  tax 
upon  freight  transported  from  State  to  State,  or  upon  the  trans- 
porter because  of  such  transportation. 

But  while  holding  this,  we  recognize  fully  the  power  of  each 
State  to  tax  at  its  discretion  its  own  internal  commerce,  and  the 
franchises,  property,  or  business  of  its  own  corporations,  so  that 
interstate  intercourse,  trade,  or  commerce,  be  not  embarrassed  or 
restricted.     That  must  remain  free. 

The  conclusion  of  the  whole  is  that,  in  our  opinion,  the  act  of 
the  legislature  of  Pennsylvania  of  August  25th,  1864,  so  far  as 
it  applies  to  articles  carried  through  the  State,  or  articles  taken 
up  in  the  State  and  carried  out  of  it,  or  articles  taken  up  without 
the  State  and  brought  into  it,  is  unconstitutional  and  void. 

Judgment  reversed,  and  the  record  is  remitted  for  further  pro- 
ceeditigs  in  accordance  with  this  opinion. 

Mr.  Justice  Swayne  (with  whom  concurred  Mk.  Justice 
Davis),  dissenting. 

I  dissent  from  the  opinion  just  read.  In  my  judgment,  the  tax 
is  imposed  upon  the  business  of  those  required  to  pay  it.  The 
tonnage  is  only  the  mode  of  ascertaining  the  extent  of  the  busi- 
ness. That  no  discrimination  is  made  between  freight  carried 
wholly  within  the  State,  and  that  brought  into  or  carried  through 
or  out  of  it,  sets  this,  as  I  think,  in  a  clear  light,  and  is  con- 
clusive on  the  subject. 


PENSACOLA  TEL.  CO.  v.  WESTERN  UNION   TEL.    CO.     255 

PENSACOLA   TELEGEAPH  COMPANY   v.   WESTERN 
UNION    TELEGRAPH    COMPANY. 

96  U.  S.,  1.    Decided  1877. 

Appeal  from  the  Circuit  of  the  United  States  for  the  Northern 
District  of  Florida.  .  .  .  [The  Pensacola  Telegraph  Co.  was 
incorporated  in  1866  by  the  State  of  Florida,  and  granted  the 
exclusive  right  to  establish  and  maintain  telegraph  lines  in  cer- 
tain counties  of  Florida.  Later,  in  1874,  the  legislature  of  Flor- 
ida empowered  a  railroad  company  to  erect  a  telegraph  line  within 
the  territory  of  the  exclusive  grant  to  the  Pensacola  Company.  In 
1866,  prior  to  the  passage  of  the  first  of  these  acts.  Congress  had 
enacted  that  telegraph  lines  might  be  established  "through  and 
over  any  portion  of  the  public  domain  of  the  United  States,  over 
and  along  any  of  the  military  and  post  roads  of  the  United 
States  which  have  been  or  may  hereafter  be  declared  such  by 
act  of  Congress,  and  over,  under,  or  across  the  navigable  streams 
and  waters  of  the  United  States."  In  June,  1867,  the  defend- 
ants had  filed  with  the  Postmaster-General  their  acceptance  of 
the  terms  of  the  act,  as  required  by  law.  In  1874  the  railroad 
company  above  mentioned  authorized  the  defendant  to  erect  a 
telegraph  line  upon  its  right  of  way,  whereupon  the  plaintiff 
sought  to  enjoin  the  construction  and  use  of  the  line.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

Since  the  case  of  Gibbons  v.  Ogden  (9  Wheat.,  1),  it  has  never 
been  doubted  that  commercial  intercourse  is  an  element  of  com- 
merce which  comes  within  the  regulating  power  of  Congress. 
Post-offices  and  post-roads  are  established  to  facilitate  the  trans- 
mission of  intelligence.  Both  commerce  and  the  postal  service 
are  placed  within  the  power  of  Congress,  because,  being  national 
in  their  operation,  they  should  be  under  the  protecting  care  of 
the  national  government. 

The  powers  thus  granted  are 'not  confined  to  the  instrumental- 
ities of  commerce,  or  the  postal  system  known  or  in  use  when 
the  Constitution  was  adopted,  but  they  keep  pace  with  the  prog- 
ress of  the  country,  and  adapt  themselves  to  the  new  develop- 
ments of  times  and  circumstances.  They  extend  from  the  horse 
with  its  rider  to  the  stage-coach,  from  the  sailing-vessel  to  the 
steam-boat,  from  the  coach  and  the  steam-boat  to  the  railroad, 
and  from  the  railroad  to  the  telegraph,  as  these  new  agencies  are 


256  CASES   ON  CONSTITUTIONAL   LAW. 

successively  brought  into  use  to  meet  the  demands  of  increasing 
population  and  wealth.  They  were  intended  for  the  government 
of  the  business  to  which  they  relate,  at  all  times  and  under  all 
circumstances.  As  they  were  entrusted  to  the  general  govern- 
ment for  the  good  of  the  nation,  it  is  not  only  the  right,  but  the 
duty,  of  Congress  to  see  to  it  that  intercourse  among  the  States 
and  the  transmission  of  intelligence  are  not  obstructed  or  unnec- 
essarily encumbered  by  State  legislation. 

The  electric  telegraph  marks  an  epoch  in  the  progress  of  time. 
In  a  little  more  than  a  quarter  of  a  century  it  has  changed  the 
habits  of  business,  and  become  one  of  the  necessities  of  commerce. 
It  is  indispensable  as  a  means  of  inter-communication,  but  es- 
pecially is  it  so  in  commercial  transactions.  The  statistics  of  the 
business  before  the  recent  reduction  in  rates  show  that  more 
than  eighty  per  cent  of  all  the  messages  sent  by  telegraph  related 
to  commerce.  Goods  are  sold  and  money  paid  upon  telegraphic 
orders.  Contracts  are  made  by  telegraphic  corespondence,  car- 
goes secured,  and  the  movement  of  ships  directed.  The  tele- 
graphic announcement  of  the  markets  abroad  regulates  prices  at 
home,  and  a  prudent  merchant  rarely  enters  upon  an  important 
transaction  without  using  the  telegraph  freely  to  secure  informa- 
tion. 

It  is  not  only  important  to  the  people,  but  to  the  govern- 
ment. By  means  of  it  the  heads  of  departments  in  Washington 
are  kept  in  close  communication  with  all  their  various  agencies 
at  home  and  abroad,  and  can  know  at  almost  any  hour,  by  in- 
quiry, what  is  transpiring  anywhere  that  affects  the  interest  they 
have  in  charge.  Under  such  circumstances,  it  cannot  for  a  mo- 
ment be  doubted  that  this  powerful  agency  of  commerce  and 
inter-communication  comes  within  the  controlling  power  of  Con- 
gress, certainly  as  against  hostile  State  legislation.  In  fact,  from 
the  beginning,  it  seems  to  have  been  assumed  that  Congress  might 
aid  in  developing  the  system;  for  the  first  telegraph  line  of  any 
considerable  extent  ever  erected  was  built  between  Washington 
and  Baltimore,  only  a  little  more  than  thirty  years  ago,  with 
money  appropriated  by  Congress  for  that  purpose  (5  Stat.,  618); 
and  large  donations  of  land  and  money  have  since  been  made 
to  aid  in  the  construction  of  other  lines  (12  Stat.,  489,  772;  13 
id.,  365;  14  id.,  292).  It  is  not  necessary  now  to  inquire 
whether  Congress  may  assume  the  telegraph  as  part  of  the  postal 
service,  and  exclude  all  others  from  its  use.  The  present  case 
is  satisfied,  if  we  find  that  Congress  has  power,  by  appropriate 


PENSACOLA  TEL.   CO.  V.  WESTERN  UNION  TEL.  CO.    257 

legislation,  to  prevent  the  States  from  placing  obstructions  in  the 
way  of  its  usefulness. 

The  government  of  the  United  States,  within  the  scope  of  its 
powers,  operates  upon  every  foot  of  territory  under  its  jurisdic- 
tion. It  legislates  for  the  whole  nation,  and  is  not  embarrassed 
by  State  lines.  Its  peculiar  duty  is  to  protect  one  part  of  the 
country  from  encroachments  by  another  upon  the  national  rights 
which  belong  to  all. 

The  State  of  Florida  has  attempted  to  confer  upon  a  single 
corporation  the  exclusive  right  of  transmitting  intelligence  by 
telegraph  over  a  certain  portion  of  its  territory.  This  embraces 
the  two  westernmost  counties  of  the  State,  and  extends  from 
Alabama  to  the  Gulf.  No  telegraph  line  can  cross  the  State  from 
east  to  west,  or  from  north  to  south,  within  these  counties,  except 
it  passes  over  this  territory.  Within  it  is  situated  an  important 
seaport,  ait  w^hieh  business  centers,  and  with  which  those  engaged 
in  commercial  pursuits  have  occasion  more  or  less,  to  communi- 
cate. The  United  States  have  there  also  the  necessary  machin- 
ery of  the  national  government.  They  have  a  navy-yard,  forts, 
custom-houses,  courts,  post-offices,  and  the  appropriate  officers 
for  the  enforcement  of  the  laws.  The  legislation  of  Florida,  if 
sustained,  excludes  all  commercial  intercourse  by  telegraph  be- 
tween the  citizens  of  the  other  States  and  those  residing  upon 
this  territory,  except  by  the  employment  of  this  corporation.  The 
United  States  cannot  communicate  with  their  own  officers  by  tele- 
graph except  in  the  same  way.  The  State,  therefore,  clearly  has 
attempted  to  regulate  commercial  intercourse  between  its  citizens 
and  those  of  other  States,  and  to  control  the  transmission  of  all 
telegraphic  correspondence  within  its  own  jurisdiction. 

It  is  unnecessary  to  decide  how  far  this  might  have  been  done 
if  Congress  had  not  acted  upon  the  same  subject,  for  it  has  acted. 
The  statute  of  July  24,  1866,  in  effect,  amounts  to  a  prohibi- 
tion of  all  State  monopolies  in  this  particular.  It  substantially 
declares,  in  the  interest  of  commerce  and  the  convenient  trans- 
mission of  intelligence  from  place  to  place  by  the  government  of 
the  United  States  and  its  citizens,  that  the  erection  of  telegraph 
lines  shall,  so  far  as  State  interference  is  concerned,  be  free  to 
all  who  will  submit  to  the  conditions  imposed  by  Congress,  and 
that  corporations  organized  under  the  laws  of  one  State  for 
constructing  and  operating  telegraph  lines  shall  not  be  exclud-ed 
by  another  from  prosecuting  their  business  within  its  jurisdiction, 
if  they  accept  the  terms  proposed  by  the  national  government  for 
this  national  privilege.  To  this  extent,  certainly,  the  statute  is 
17 


258  CASES   ON  CONSTITUTIONAL   LAW. 

a  legitima'te  regulation  of  commercial  intercourse  among  the 
States,  and  is  appropriate  legislation  to  carry  into  execution  the 
powers  of  Congress  over  the  postal  service.  It  gives  no  foreign 
corporation  the  right  to  enter  upon  private  property  without  the 
consent  of  the  owner  and  erect  the  necessary  structures  for  its 
business;  but  it  does  provide,  that,  whenever  the  consent  of  the 
owner  is  obtained,  no  State  legislation  shall  prevent  the  occupa- 
tion of  post-roads  for  telegraph  purposes  by  such  corporations  as 
are  willing  to  avail  themselves  of  its  privileges. 

It  is  insisted,  however,  that  the  statute  extends  only  to  such 
military  and  post  roads  as  are  upon  the  public  domain;  but  this, 
we  think,  is  not  so.  The  language  is,  "Through  and  over  any  por- 
tion of  the  public  domain  of  the  United  States,  over  and  along  any 
of  the  military  or  post  roads  of  the  United  States  which  have  been 
or  may  hereafter  be  declared  such  by  act  of  Congress,  and  over, 
under,  or  across  the  navigable  streams  or  waters  of  the  United 
States."  There  is  nothing  to  indicate  an  intention  of  limiting 
the  eifect  of  the  words  employed,  and  they  are,  therefore,  to  be 
given  their  natural  and  ordinary  signification.  Eead  in  this  way, 
the  grant  evidently  extends  to  the  public  domain,  the  military  and 
post  roads,  and  the  navigable  waters  of  the  United  States.  These 
are  all  within  the  dominion  of  the  national  government  to  the 
extent  of  the  national  powers,  and  are,  therefore,  subject  to  legit- 
imate congressional  regulation.  Xo  question  arises  as  to  the  au- 
thority of  Congress  to  provide  for  the  appropriation  of  private 
property  to  the  uses  of  the  telegraph,  for  no  such  attempt  has 
been  made.  The  use  of  public  property  alone  is  granted.  If  pri- 
vate property  is  required,  it  must,  so  far  as  the  present  legisla- 
tion is  concerned,  be  obtained  by  private  arrangement  with  its 
owner.  No  compulsory  proceedings  are  authorized.  State  sov- 
ereignty under  the  Constitution  is  not  interfered  with.  Only  na- 
tional privileges  are  granted. 

The  State  law  in  question,  so  far  as  it  confers  exclusive  rights 
upon  the  Pensacola  Company,  is  certainly  in  conflict  with  this 
legislation  of  Congress.  To  that  extent  it  is,  therefore,  inopera- 
tive as  against  a  corporation  of  another  State  entitled  to  the  priv- 
ileges of  the  act  of  Congress.  Such  being  the  ease,  the  charter  of 
the  Pensacola  Company  does  not  exclude  the  "Western  Union  Com- 
pany from  the  occupancy  of  the  right  of  way  of  the  Pensacola  and 
Ix)uisville  Eailroad  Company  under  the  arrangement  made  for 
that  purpose.     .     .     . 

Upon  principles  of  comity,  the  corporations  of  one  State  are 
permitted  to  do  business  in  another,  unless  it  conflicts  with  the 


GLOUCESTER   FERRY    CO.    v.    PENNSYLVANIA.  259 

law,  or  unjustly  interferes  with  the  rights  of  the  citizens  of  the 
State  into  which  they  come.  Under  such  circumstances,  no  cit- 
izen of  a  State  can  enjoin  a  foreign  corporation  from  pursuing 
its  business.  Until  the  State  acts  in  its  sovereign  capacity,  indi- 
vidual citizens  cannot  complain.  The  State  must  determine  for 
itself  when  the  public  good  requires  that  its  implied  assent  to  the 
admission  shall  be  withdrawn.  Here,  so  far  from  withdrawing 
its  assent,  the  State,  by  its  legislation  of  1874,  in  effect,  invited 
foreign  telegraph  corporations  to  come  in.  Whether  that  legisla- 
tion, in  the  absence  of  congressional  action,  would  have  been  suffi- 
cient to  authorize  a  foreign  corporation  to  construct  and  operate 
a  line  within  the  two  counties  named,  we  need  not  decide;  but 
we  are  clearly  of  the  opinion,  that,  with  such  action  and  a  right 
of  way  secured  by  private  arrangement  with  the  owner  of  the 
land,  this  defendant  corporation  cannot  be  excluded  by  the  pres- 
ent complainant. 

Decree  affirmed. 

Mr.  Justice  Field  and  Mr.  Justice  Hunt  dissented.     .     .     . 


GLOUCESTER    FERRY    COMPAXY    v.    PENNSYLVANIA. 
114  U.  S.,  196.    Decided  1885. 

[The  Gloucester  Ferry  Company,  a  New  Jersey  corporation, 
established  a  ferry  in  1865  between  Gloucester,  New  Jersey,  and 
Philadelphia.  At  each  place  it  had  a  dock;  the  one  at  Glouces- 
ter it  owns,  the  one  at  Philadelphia  it  leases.  Its  entire  busi- 
ness consists  in  ferrying  passengers  and  freight  across  the  river. 
It  has  never  had  any  property,  real  or  personal,  in  Pennsylvania, 
other  than  the  lease  of  the  dock  mentioned.  Its  boats  are  reg- 
istered at  the  port  of  Camden,  New  Jersey,  and  remain  in  Penn- 
sylvania only  long  enough  to  discharge  and  receive  passengers 
and  freight.  On  June,  7,  1879,  a  statute  was  passed  in  Penn- 
sylvania imposing  taxes,  with  certain  exceptions,  on  all  corpora- 
tions, domestic  or  foreign,  doing  business  or  employing  capital  in 
Pennsylvania.  In  July,  1880,  the  State  of  Pennsylvania  stated 
an  account  against  the  company  showing  the  sum  of  $2,593.96  to 
be  due  the  Commonwealth  for  taxes  from  1865  to  1879.  An 
appeal  was  taken  to  the  Court  of  Common  Pleas  of  Philadelphia.] 

The  Court  of  Common  Pleas  held  that  the  taxes  could  not  be 


260  CASES   ON  CONSTITUTIONAL   LAW. 

lawfully  levied,  for  there  was  no  other  business  carried  on  by  the 
company  in  Pennsylvania  except  the  landing  and  receiving  of 
passengers  and  freight,  which  is  a  part  of  the  commerce  of  the 
country,  and  protected  by  the  Constitution  from  the  imposition 
of  burdens  by  State  legislation.  It,  therefore,  gave  judgment  in 
^SLYOT  of  the  company.  The  case  being  carried  on  a  writ  of  error 
to  the  Supreme  Court  of  the  State,  the  judgment  was  reversed 
and  judgment  ordered  in  favor  of  the  Commonwealth  for  the 
amount  mentioned.  To  review  this  latter  judgment,  the  case 
was  brought  here.     .     .     . 

Mr.  Justice  Field  delivered  the  opinion  of  the  court.  He 
stated  the  facts  as  above  recited,  and  continued: — 

The  Supreme  Court  of  the  State,  in  giving  its  decision  in  this 
case,  stated  that  the  single  question  presented  for  consideration 
Avas  whether  the  company  did  business  within  the  State  of  Penn- 
sylvania during  the  period  for  which  the  taxes. were  imposed;  and 
it  held  that  it  did  do  business  there  because  it  landed  and  received 
passengers  and  freight  at  its  wharf  in  Philadelphia,  observing  that 
its  whole  income  was  derived  from  the  transportation  of  freight 
and  passengers  from  its  wharf  at  Gloucester  to  its  wharf  at  Phila- 
delphia, and  from  its  wharf  at  Philadelphia  to  its  wharf  at  Glouces- 
ter; that  at  each  of  these  points  its  main  business,  namely,  the 
receipt  and  landing  of  freight  and  passengers,  was  transacted; 
that  for  such  business  it  was  dependent  as  much  upon  the  one 
place  as  upon  the  other;  that,  as  it  could  hold  the  wharf  at 
Gloucester,  which  it  owned  in  fee,  only  by  purchase  by  virtue  of 
the  statutory  will  of  the  Legislature  of  Xew  Jersey,  so  it  could 
hold  by  lease  the  one  in  Philadelphia  only  by  the  implied  consent 
of  the  Legislature  of  the  Commonwealth;  and  that,  therefore,  it 
"was  dependent  equally,  not  only  for  its  business,  but  its  power 
to  do  that  business,  unon  both  States,  and  might,  therefore,  be 
taxed  by  both."    98  Penn.  St.,  105,  116. 

As  to  the  first  reason  thus  expressed,  it  may  be  answered  that 
the  business  of  landing  and  receiving  passengers  and  freight  at 
the  wharf  in  Philadelphia  is  a  necessary  incident  to,  indeed  is  a 
part  of,  their  transportation  across  the  Delaware  River  from  New 
Jersey.  Without  it  that  transportation  would  be  impossible. 
Transportation  implies  the  taking  up  of  persons  or  property  at 
some  point  and  putting  them  down  at  another.  A  tax,  therefore, 
upon  such  receiving  and  landing  of  passengers  and  freight  is  a 
tax  upon  their  transportation;  that  is,  upon  the  commerce  be- 
tween the  two  States  involved  in  such  transportation. 


GLOUCESTER   FERRY   CO.    v.   PENNSYLVANIA.  261 

It  matters  not  that  the  transportation  is  made  in  ferry-boats, 
which  pass  between  the  States  every  hour  of  the  day.  The  means 
of  transportation  of  persons  and  freight  between  the  States  does 
not  change  the  character  of  the  business  as  one  of  commerce,  nor 
does  the  time  within  which  the  distance  between  the  States  may 
be  traversed.  Commerce  among  the  States  consists  of  intercourse 
and  traffic  between  their  citizens,  and  includes  the  transportation 
of  persons  and  property,  and  the  navigation  of  public  waters  for 
that  purpose,  as  well  as  the  purchase,  sale,  and  exchange  of  com- 
modities. The  power  to  regulate  that  commerce,  as  well  as  com- 
merce with  foreign  nations,  vested  in  Congress,  is  the  power  to 
prescribe  the  rules  by  which  it  shall  be  governed,  that  is,  the  con- 
ditions upon  which  it  shall  be  conducted;  to  determine  when  it 
shall  be  free  and  when  subject  to  duties  or  other  exactions.  The 
power  also  embraces  Mdthin  its  control  all  the  instrumentalities 
by  which  that  commerce  may  be  carried  on,  and  the  means  by 
which  it  may  be  aided  and  encouraged.  The  subjects,  therefore, 
upon  which  the  power  may  be  exerted  are  of  infinite  variety. 
While  with  reference  to  some  of  them,  which  are  local  and  lim- 
ited in  their  nature  or  sphere  of  operation,  the  States  may  pre- 
scribe regulations  until  Congress  intervenes  and  assumes  control 
of  them;  yet,  when  they  are  national  in  their  character,  and  re- 
quire uniformity  of  regulation  affecting  alike  all  the  States,  the 
power  of  Congress  is  exclusive.  Necessarily  that  power  alone  can 
prescribe  regulations  which  are  to  govern  the  whole  country. 
And  it  needs  no  argument  to  show  that  the  commerce  with  for- 
eign nations  and  between  the  States,  which  consists  in  the  trans- 
portation of  persons  and  property  between  them,  is  a  subject 
of  national  character,  and  requires  uniformity  of  regulation.  Con- 
gress alone,  therefore,  can  deal  with  such  transportation;  its  non- 
action is  a  declaration  that  it  shall  remain  free  from  burdens  im- 
posed by  State  legislation.  Otherwise  there  would  be  no  protec- 
tion against  conflicting  regulations  of  different  States,  each  legis- 
lating in  favor  of  its  own  -citizens  and  products,  and  against  those 
of  other  States.  It  was  from  apprehension  of  such  conflicting 
and  discriminating  State  legislation,  and  to  secure  uniformity  of 
regulation,  that  the  power  to  regulate  commerce  with  foreign 
nations  and  among  the  States  was  vested  in  Congress. 

Nor  does  it  make  any  difference  whether  such  commerce  is  car- 
ried on  by  individuals  or  by  corporations.  Welton  v.  Missouri, 
91  U.  S.,  275;  Mobile  v.  Kimball,  102  U.  S.,  691.  As  was  said, 
in  Paul  V.  Virginia,  8  Wall.,  168,  at  the  time  of  the  formation 
of  the  Constitution,  a  large  part  of  the  commerce  of  the  world 


263  CASES   ON  CONSTITUTIONAL   LAW. 

was  carried  on  by  corporations;  and  the  East  India  Company,  the 
Hudson  Bay  Company,  the  Hamburgh  Company,  the  Levant  Com- 
pany, and  the  Virginia  Company  were  mentioned  as  among  the 
corporations  which,  from  the  extent  of  their  operations,  had  be- 
come celebrated  throughout  the  commercial  world.  The  grant  of 
power  is  general  in  its  terms,  making  no  reference  to  the  agencies 
by  which  commerce  may  be  carried  on.  It  includes  commerce 
by  whomsoever  conducted,  whether  by  individuals  or  by  cor- 
porations. At  the  present  day,  nearly  all  enterprises  of  a  commer- 
cial character,  requiring  for  their  successful  management  large 
expenditures  of  money,  are  conducted  by  corporations.  The  usual 
means  of  transportation  on  the  public  waters,  where  expedition 
is  desired,  are  vessels  propelled  by  steam;  and  the  ownership  of 
a  line  of  such  vessels  generally  requires  an  expenditure  exceeding 
the  resources  of  single  individuals.  Except  in  rare  instances,  it  is 
only  by  associated  capital  furnished  by  persons  united  in  cor- 
porations, that  the  requisite  means  are  provided  for  such  expendi- 
tures. 

As  to  the  second  reason  given  for  the  decision  below,  that  the 
company  could  not  lease  its  wharf  in  Philadelphia  except  by  the 
implied  consent  of  the  Legislature  of  the  Commonwealth,  and 
thus  is  dependent  upon  the  Commonwealth  to  do  its  business,  and 
therefore  can  be  taxed  there,  it  may  be  answered  that  no  foreign 
or  interstate  commerce  can  be  carried  on  with  the  citizens  of 
a  State  without  the  use  of  a  wharf,  or  other  place  within  its  limits 
on  which  passengers  and  freight  can  be  landed  and  received,  and 
the  existence  of  power  in  a  State  to  impose  a  tax  upon  the  cap- 
ital of  all  corporations  engaged  in  foreign  or  interstate  commerce 
for  the  use  of  such  places  would  be  inconsistent  with  and  en- 
tirely subversive  of  the  power  vested  in  Congress  over  such  com- 
merce. Nearly  all  the  lines  of  steamships  and  of  sailing  vessels 
between  the  L^nited  States  and  England,  France,  Germany,  and 
other  countries  of  Europe,  and  between  the  United  States  and 
South  America,  are  owned  by  corporations;  and  if  by  reason  of 
landing  or  receiving  passengers  and  freight  at  whan^es,  or  other 
places  in  a  State,  they  can  be  taxed  by  the  Sd:ate  on  their  capital 
stock  on  the  ground  that  they  are  thereby  doing  business  within 
her  limits,  the  taxes  which  may  be  imposed  may  embarrass,  im- 
pede, and  even  destroy  such  commerce  with  the  citizens  of  the 
State.  If  such  a  tax  can  be  levied  at  all,  its  amount  will  rest 
in  the  discretion  of  the  State.  It  is  idle  to  say  that  the  interests 
of  the  State  would  prevent  oppressive  taxation.  Those  engaged 
in  foreign  and  interstate  commerce  are  not  bound  to  trust  to 


GLOUCESTER   FERRY   CO,    v,   PENNSYLVANIA.  263 

its  moderation  in  that  respect;  they  require  security.  And  they 
may  rely  on  the  power  of  Congress  to  prevent  any  interference  by 
the  State  until  the  act  of  commerce,  the  transportation  of  passen- 
gers and  freight,  is  completed.  The  only  interference  of  the  State 
with  the  landing  and  receiving  of  passengers  and  freight,  which  is 
permissible,  is  confined  to  such  measures  as  will  prevent  con- 
fusion among  the  vessels,  and  collision  between  them,  insure  their 
safety  and  convenience,  and  facilitate  the  discharge  or  receipt 
of  their  passengers  and  freight,  which  fall  under  the  general 
head  of  port  regulations,  of  which  we  shall  presently  speak. 

It  is  true  that  the  property  of  corporations  engaged  in  for- 
eign or  interstate  commerce,  as  well  as  the  property  of  corpora- 
tions engaged  in  other  business,  is  subject  to  State  taxation,  pro- 
vided always  it  be  within  the  jurisdiction  of  the  State.  As 
said  by  Chief  Justice  Marshall  in  McCulloch  v.  Maryland,  4 
Wheat,,  316,  429,  "all  subjects  over  which  the  sovereign  power  of 
a  State  extends  are  objects  of  taxation;  but  those  over  which  it 
does  not  extend  are,  upon  the  soundest  principles,  exempt  from 
taxation.  This  proposition  may  almost  be  pronounced  self-evi- 
dent.*' .  .  .  [Here  follows  a  discussion  of  Hays  v.  Pacific  Mail 
Steamship  Co.,  17  Howard,  596;  Morgan  v.  Parham,  16  Wallace, 
471;  St.  Louis  v.  The  Ferry  Co.,  11  Wallace,  423,  and  Kailroad 
Co.  v.  Pennsylvania,  15  Wallace,  300.] 

In  the  recent  case  of  Commonwealth  of  Pennsylvania  v.  Stand- 
ard Oil  Co.,  101  Penn,  St,,  119,  the  liability  of  foreign  corpora- 
tions doing  business  within  that  State  is  elaborately  considered  by 
its  Supreme  Court.  The  corporation  was  doing  business  there,  and 
it  was  contended  on  the  part  of  the  Commonwealth  that  the  tax 
should  be  imposed  upon  all  of  the  capital  stock  of  the  com- 
pany; while  on  the  other  side  it  was  urged  that  only  so  much  of 
the  stock  M'^as  intended,  by  the  statute,  to  be  taxed  as  was  repre- 
sented by  property  of  the  company  invested  and  used  in  the 
State.  In  giving  its  decision  the  court  said  that  it  had  been 
repeatedly  decided  and  was  settled  law  that  a  tax  upon  the  cap- 
ital stock  of  a  company  is  a  tax  upon  its  property  and  assets  (cit- 
ing to  that  effect  a  large  number  of  decisions);  that  it  was  un- 
doubtedly competent  for  the  legislature  to  lay  a  franchise  or  li- 
cense tax  upon  foreign  corporations  for  the  privilege  of  doing 
business  within  the  State,  but  that  the  tax  in  that  case  was  in 
no  sense  a  license  tax;  that  the  State  had  never  granted  a  license 
to  the  Standard  Oil  Company  to  do  business  there,  but  merely 
taxed  its  property,  that  is,  its  capital  stock,  to  the  extent  that  it 
brought  such  property  within  its  borders  in  the  transaction  of  its 


264  CASES   ON  CONSTITUTIONAL   LAW. 

business;  that  the  position  of  the  Commonwealth,  that  a  for- 
eign corporation  entering  the  State  to  do  business  brought  its 
entire  capital,  was  ingenious  but  unsound;  that  it  was  a  funda- 
mental principle  that,  in  order  to  be  taxed,  the  person  must  have 
a  domicil  in  the  State,  and  the  thing  must  have  a  situs  therein; 
that  persons  and  property  in  transitu  could  not  be  taxed;  that  the 
domicil  of  a  corporation  was  in  the  State  of  its  origin  and  it 
could  not  emigrate  to  another  sovereignty;  that  the  domicil  of  the 
Standard  Oil  Company  was  in  Ohio,  and  when  it  sent  its  agents 
into  the  State  to  transact  business  it  no  more  entered  the  State 
in  point  of  fact  than  any  other  foreign  corporation,  firm,  or  in- 
dividual who  sent  an  agent  there  to  open  an  office  or  branch 
house,  or  brought  its  capital  there  constructively;  that  it  would 
be  as  reasonable  to  assume  that  a  business  firm  in  Ohio  brought 
its  entire  capital  there  because  it  sent  its  agent  to  establish  a 
branch  of  its  business,  as  to  hold  that  the  Standard  Oil  Com- 
pany, by  employing  certain  persons  in  the  State  to  transact  a 
portion  of  its  business,  thereby  brought  all  its  property  or  cap- 
ital stock  within  the  Jurisdiction  of  the  State;  that  there  was 
neither  reason  nor  authority  for  such  a  proposition;  that  the 
company  was  taxable  only  to  the  extent  that  it  brought  its  prop- 
erty within  the  State;  and  that  its  capital  stock,  as  mentioned 
in  the  act  of  the  legislature,  must  be  construed  to  mean  so  much 
of  the  capital  stock  as  was  measured  by  the  property  actually 
brought  within  the  State  by  the  company  in  the  transaction  of 
its  business.  The  justice  who  delivered  the  opinion  of  the  court 
added,  speaking  for  himself,  that  he  conceded  the  power  of  the 
Commonwealth  to  exclude  foreign  corporations  altogether  from 
her  borders,  or  to  impose  a  license  tax  so  heavy  as  to  amount 
to  the  same  thing;  but  he  denied,  great  and  searching  as  her 
taxing  power  is,  that  she  could  tax  either  persons  or  property 
not  within  her  jurisdiction.  "A  foreign  corporation,"  he  said, 
"'has  no  domicil  here,  and  can  have  none;  hence  it  cannot  be 
said  to  draw  to  itself  the  constructive  possession  of  its  property 
located  elsewhere.  There  are  a  large  number  of  foreign  insurance 
companies  doing  business  here  under  license  from  the  State.  Some 
of  them  have  a  very  large  capital.  It  is  usually  invested  at  the 
domicil  of  the  company.  If  the  position  of  the  Commonwealth 
is  correct,  she  can  tax  the  entire  property  of  the  Eoyal  Insurance 
Company,  although  the  same  is  located  almost  wholly  in  Eng- 
land, or  the  assets  of  the  New  York  Mutual,  located  in  New 
York." 

Under  this  decision  there  is  no  property  held  by  the  Gloucester 


GLOUCESTER  FERRY   CO.    v.   PENNSYLVANIA.  265 

Ferry  Company,  which  can  be  the  subject  of  taxation  in  Pennsyl- 
vania, except  the  lease  of  the  wharf  in  that  S^tate.  Whether  that 
wharf  is  taxed  to  the  owner  or  to  the  lessee  it  matters  not,  for  no 
question  here  is  involved  in  such  taxation.  It  is  admitted  that  it 
could  be  taxed  by  the  State  according  to  its  appraised  value.  The 
ferry-boats  of  the  company  are  registered  at  the  port  of  Camden 
in  New  Jersey,  and  according  to  the  decisions  in  Hays  v.  The 
Pacific  Mail  Steamship  Co.,  and  in  Morgan  v.  Parham,  they  can 
be  taxed  only  at  their  home  port.  According  to  the  decision 
in  the  Standard  Oil  Company  case,  and  by  the  general  law  on 
the  subject,  the  company  has  no  domicil  in  Pennsylvania,  and 
its  capital  stock  representing  its  property  is  held  outside  of  its 
limits.  It  is  solely,  therefore,  for  the  business  of  the  company  in 
landing  and  receiving  passengers  at  the  wharf  in  Philadelphia  that 
the  tax  is  laid,  and  that  business,  as  already  said,  is  an  essential 
part  of  the  transportation  between  the  States  of  New  Jersey  and 
Pennsylvania,  which  is  itself  interstate  commerce.  While  it  is 
conceded  that  the  property  in  a  State  belonging  to  a  foreign  cor- 
poration engaged  in  foreign  or  interstate  commerce  may  be  taxed 
equally  with  like  property  of  a  domestic  corporation  engaged  in 
that  business,  we  are  clear  that  a  tax  or  other  burden  imposed 
on  the  property  of  either  corporation  because  it  is  used  to  carry 
on  that  commerce,  or  upon  the  transportation  of  persons  or  prop- 
erty, or  for  the  navigation  of  the  public  waters  over  which  the 
transportation  is  madcj  is  invalid  and  void  as  an  interference 
with,  and  an  obstruction  of,  the  power  of  Congress  in  the  regula- 
tion of  such  commerce.  This  proposition  is  supported  by  many 
adjudications.     .     .     . 

[Here  follow  statements  of  Gibbons  v.  Ogden,  9  Wheaton,  1; 
Steamship  Co.  v.  Port  Wardens,  6  Wallace,  31;  Eeading  Eailroad 
Co.  V.  Pennsylvania,  15  Wallace,  232;  and  Henderson  v.  The 
Mayor  of  New  York,  92  U.  S.,  259.] 

These  cases  would  seem  to  be  decisive  of  the  character  of  the 
business  which  is  the  subject  of  taxation  in  the  present  case.  Ee- 
ceiving  and  landing  passengers  and  freight  is  incident  to  their 
transportation.  Without  both  there  could  be  no  such  thing  as 
their  transportation  across  the  river  Delaware.  The  transporta- 
tion, as  to  passengers,  is  not  completed  until,  as  said  in  the  Hen- 
derson case,  they  are  disembarked  at  the  pier  of  the  city  to  which 
they  are  carried;  and,  as  to  freight,  until  it  is  landed  upon  such 
pier.  And  all  restraints  by  exactions  in  the  form  of  taxes  upon 
such  transportation,  or  upon  acts  necessary  to  its  completion,  are 


266  CASES   ON  CONSTITUTIONAL   LAW. 

SO  many  invasions  of  the  exclusive  power  of  Congress  to  regu- 
late that  portion  of  commerce  between  the  States. 

The  cases  where  a  tax  or  toll  upon  vessels  is  allowed  to  meet 
the  expenses  incurred  in  improving  the  navigation  of  waters  tra- 
versed by  them,  as  by  the  removal  of  rocks,  the  construction  of 
dams  and  locks  to  increase  the  depth  of  water  and  thus  extend 
the  line  of  navigation,  or  the  construction  of  canals  around  falls, 
rest  upon  a  different  principle.  The  tax  in  sucn  cases  is  con- 
sidered merely  as  compensation  for  the  additional  facilities  thus 
provided  in  the  navigation  of  the  waters.  Kellogg  v.  Union  Co., 
12  Conn.,  7;  Thames  Bank  v.  Lovell,  18  Conn.,  500;  McReynolds 
V.  Smallhouse,  8  Bush,  447. 

Upon  similar  grounds,  what  are  termed  harbor  dues  or  port 
charges,  exacted  by  the  State  from  vessels  in  its  harbors,  or  from 
their  owners,  for  other  than  sanitary  purposes,  are  sustained.  We 
say  for  other  than  sanitary  purposes;  for  the  power  to  prescribe 
regulations  to  protect  the  health  of  the  community,  and  prevent 
the  spread  of  disease,  is  incident  to  all  local  municipal  author- 
ity, however  much  such  regulations  may  interfere  with  the  move- 
ments of  commerce.  But,  independently  of  such  measures,  the 
State  may  prescribe  regulations  for  the  government  of  vessels 
whilst  in  its  harbors;  it  may  provide  for  their  anchorage  or  moor- 
ing, so  as  to  prevent  confusion  and  collision;  it  may  designate  the 
wharves  at  which  they  shall  discharge  and  receive  their  passengers 
and  cargoes  and  require  their  removal  fron>  the  wharves  when  not 
thus  engaged,  so  as  to  make  room  for  other  vessels.  It  may  appoint 
officers  to  see  that  the  regulations  are  carried  out,  and  impose 
penalties  for  refusing  to  obey  the  directions .  of  such  officers;  and 
it  may  impose  a  tax  upon  vessels  sufficient  to  meet  the  expenses 
attendant  upon  the  execution  of  the  regulations.  The  author- 
ity for  establishing  regulations  of  this  character  is  found  in  the 
right  and  duty  of  the  supreme  power  of  the  State  to  provide  for 
the  safety,  convenient  use,  and  undisturbed  enjoyment  of  prop- 
erty within  its  limits;  and  charges  incurred  in  enforcing  the 
regulations  may  properly  be  considered  as  compensation  for  the 
facilities  thus  furnished  to  the  vessels.  Vanderbilt  v.  Adams, 
7  Cowen,  349,  351.  Should  such  regulations  interfere  with  the 
exercise  of  the  commercial  power  of  Congress,  they  may  at  any 
time  be  superseded  by  its  action.  It  was  not  intended,  however, 
by  the  grant  to  Congress  to  supersede  or  interfere  with  the  power 
of  the  States  to  establish  police  regulations  for  the  better  protec- 
tion and  enjoyinent  of  property.  Sometimes,  indeed,  as  remarked 
by  Mr.  Cooley,  the  line  of  distinction  between  what  constitutes  an 


GLOUCESTER   FERRY    CO.    v.   PENNSYLVANIA.  267 

interference  with  commerce  and  what  is  a  legitimate  police  reg- 
ulation is  exceedingly  dim  and  shadowy,  and  he  adds:  "It  is 
not  doubted  that  Congress  has  the  power  to  go  beyond  the  gen- 
eral regulations  of  commerce  which  it  is  accustomed  to  estab- 
lish, and  to  descend  to  the  most  minute  directions  if  it  shall  be 
deemed  advisable,  and  that  to  whatever  extent  ground  shall  be 
covered  by  those  directions,  the  exercise  of  State  power  is  ex- 
cluded. Congress  may  establish  police  regulations  as  well  as  the 
States,  confining  their  operations  to  the  subjects  over  which  it  is 
given  control  by  the  Constitution;  but  as  the  general  police  power 
can  better  be  exercised  under  the  provisions  of  the  local  author- 
ity, and  mischiefs  are  not  likely  to  spring  therefrom  so  long  as 
the  power  to  arrest  collision  resides  in  the  National  Congress,  the 
regulations  which  are  made  by  Congress  do  not  often  exclude  the 
establishment  of  others  by  the  State  covering  very  many  particu- 
lars."    Cooley's  Constitutional  Limitations,  732, 

The  power  of  the  States  to  regulate  matters  of  internal  police 
includes  the  establishment  of  ferries  as  well  as  the  construction 
of  roads  and  bridges.  In  Gibbons  v.  Ogden,  Chief  Justice  Mar- 
shall said  that  laws  respecting  ferries,  as  well  as  inspection  laws, 
quarantine  laws,  health  laws,  and  laws  regulating  the  internal 
commerce  of  the  States,  are  component  parts  of  an  immense  mass 
of  legislation,  embracing  everything  within  the  limits  of  a  State 
not  surrendered  to  the  general  government;  but  in  this  lan- 
guage he  plainly  refers  to  ferries  entirely  within  the  State,  and 
not  to  ferries  transporting  passengers  and  freight  between  the 
States  and  a  foreign  country;  for  the  power  vested  in  Congress, 
he  says,  comprehends  every  species  of  commercial  intercourse  be- 
tween the  United  States  and  foreign  countries.  No  sort  of  trade, 
he  adds,  can  be  carried  on  between  this  country  and  another  to 
which  the  power  does  not  extend;  and  what  is  true  of  foreign 
commerce  is  also  true  of  commerce  between  States  over  the  waters 
separating  them.  Ferries  between  one  of  the  States  and  a  foreign 
country  cannot  be  deemed,  therefore,  beyond  the  control  of  Con- 
gress under  the  commercial  power.  They  are  necessarily  governed 
by  its  legislation  on  the  importation  and  exportation  of  merchan- 
dise and  the  immigration  of  foreigners,  that  is,  are  subject  to  its 
regulation  in  that  respect;  and  if  they  are  not  beyond  the  control 
of  the  commercial  power  of  Congress,  neither  are  ferries  over 
waiters  separating  States.  Congress  has  passed  various  laws  re- 
specting such  international  and  interstate  ferries,  the  validity  of 
which  is  not  open  to  question.  It  has  provided  that  vessels  used 
exclusively  as  ferry-boats,  carrying  passengers,  baggage,  and  mer- 


268  CASES  ON  CONSTITUTIONAL  LAW. 

chandise,  shall  not  be  required  to  enter  and  clear,  nor  shall  their 
masters  be  required  to  present  manifests,  or  to  pay  entrance  or 
clearance  fees,  or  fees  for  receiving  or  certifying  manifests;  "but 
they  shall,  upon  arrival  in  the  United  States,  be  required  to  re- 
port such  baggage  and  merchandise  to  the  proper  officer  of  the 
customs,  according  to  law,"  Eev.  Stat.,  §  2792;  that  the  lights 
for  ferry-boats  shall  be  regulated  by  such  rules  as  the  Board  of 
Supervising  Inspectors  of  Steam  Vessels  shall  prescribe,  Kev. 
Stat.,  §  4233,  Rule  7;  that  any  foreign  railroad  company  or  cor- 
poration, whose  road  enters  the  United  States  by  means  of  a  ferry 
or  tug-boat,  may  own  such  boat,  and  that  it  shall  be  subject 
to  no  other  or  different  restrictions  or  regulations  in  such  employ- 
ment than  if  owned  by  a  citizen  of  the  United  States,  Eev.  Stat., 
§  4370;  that  the  hull  and  boilers  of  every  ferry-boat  propelled 
by  steam  shall  be  inspected,  and  provisions  of  law  for  the  better 
security  of  life,  which  may  be  applicable  to  them,  shall,  by  reg- 
ulations of  the  supervising  inspectors,  be  required  to  be  com- 
plied with  before  a  certificate  of  inspection  be  granted;  and  that 
they  shall  not  be  navigated  without  a  licensed  engineer  and  a 
licensed  pilot.  Rev.  Stat.,  §  4426. 

It  is  true  that,  from  the  earliest  period  in  the  history  of  the 
government,  the  States  have  authorized  and  regulated  ferries,  not 
only  over  waters  entirely  within  their  limits,  but  over  waters 
separating  them;  and  it  may  be  conceded  that  in  many  respects, 
the  States  can  more  advantageously  manage  such  inter-State  fer- 
ries than  the  general  government;  and  that  the  privilege  of  keep- 
ing a  ferry,  with  a  right  to  take  toll  for  passengers  and  freight, 
is  a  franchise  grantable  by  the  State,  to  be  exercised  within 
such  limits  and  under  such  regulations  as  may  be  required  for 
the  safety,  comfort,  and  convenience  of  the  public.  Still  the 
fact  remains  that  such  a  ferry  is  a  means,  and  a  necessary  means, 
of  commercial  intercourse  between  the  States  bordering  on  their 
dividing  waters,  and  it  must,  therefore,  be  conducted  without  the 
imposition  by  the  States  of  taxes  or  other  burdens  upon  the  com- 
merce between  them.  Freedom  from  such  impositions  does  not, 
of  course,  imply  exemption  from  reasonable  charges,  as  com- 
pensation for  the  carriage  of  persons,  in  the  way  of  tolls  or  fares, 
or  from  the  ordinary  taxation  to  which  other  property  is  subjected, 
any  more  than  like  freedom  of  transportation  on  land  implies 
such  exemption.  Reasonable  charges  for  the  use  of  property, 
either  on  water  or  land,  are  not  an  interference  with  the  freedom 
of  transportation  between  the  States  secured  under  the  commer- 
cial power  of  Congress.     Packet  Co.  v.  Keokuk,  95  U.  S.,  80; 


LEISY  V.  HARDIN.  269 

Packet  Co.  v.  St.  Louis,  100  U.  S.,  423;  Vicksburg  v.  Tobin,  100 
U.  S.,  430;  Packet  Co.  v.  Catlettsburg,  105  U.  S.,  559;  Transporta- 
tion Co.  V.  Parkersburg,  107  U.  S.,  691.  That  freedom  implies 
exemption  from  charges  other  than  such  as  are  imposed  by  way 
of  compensation  for  the  use  of  the  property  employed,  or  for 
facilities  afforded  for  its  use,  or  as  ordinary  taxes  upon  the  value 
of  the  property.  How  conflicting  legislation  of  the  two  States  on 
the  subject  of  ferries  on  waters  dividing  them  is  to  be  met  and 
treated  is  not  a  question  before  us  for  consideration.  Pennsylvania 
has  never  attempted  to  exercise  its  power  of  establishing  and  reg- 
ulating ferries  across  the  Delaware  Eiver.  Any  one,  so  far  as 
her  laws,  are  concerned,  is  free,  as  we  are  informed,  to  establish 
such  ferries  as  he  may  choose.  No  license  fee  is  exacted  from 
ferry-keepers.  She  merely  exercises  the  right  to  designate  the 
places  of  landing,  as  she  does  the  places  of  landing  for  all  vessels 
engaged  in  commerce.  The  question,  therefore,  respecting  the  tax 
in  the  present  case  is  not  complicated  by  any  action  of  that  State 
concerning  ferries.  However  great  her  power,  no  legislation  on 
her  part  can  imnose  a  tax  on  that  portion  of  inter-State  commerce 
which  is  involved  in  the  transportation  of  persons  and  freight, 
whatever  be  the  instrumentality  by  which  it  is  Carried  on. 

It  follows  that  upon  the  case  stated  the  tax  upon  the  ferry  com- 
pany was  illegal  and  void. 

The  judgment  of  the  Supreme  Court  of  the  State  of  Pennsyl- 
vania must,  therefore,  he  reversed  and  the  cause  remanded  for 
further  proceedings  in  conformity  with  this  opinion. 


LEISY  V.  HARDIN". 

135  U.  S.,  100.    Decided  1890. 

[Error  to  the  Supreme  Court  of  Iowa.  The  plaintiffs,  who 
were  brewers  doing  business  at  Peoria,  Illinois,  had  shipped  beer 
in  sealed  packages  to  Keokuk,  Iowa,  where  it  was  offered  for  sale 
in  the  original  packages.  A  certain  quantity  of  the  beer  was 
seized  by  Hardin,  the  city  marshal  of  Keokuk,  under  color  of 
authority  of  the  statutes  of  Iowa  which  forbade  the  manufacture 
or  sale  of  intoxicating  liquors,  or  keeping  them  with  intent  to 
sell,  except  for  medicinal,  chemical,  pharmaceutical  and  sacra- 
mental purposes  as  allowed  in  the  act.     The  plaintiffs  brought 


270  CASES  ON  CONSTITUTIONAL  LAW. 

replevin  against  Hardin  to  recover  the  beer  seized,  and  the  local 
court  gave  judgment  for  the  plaintiffs  on  the  ground  that  the 
State  enactment  was  invalid.  This  judgment  was  reversed  by 
the  Supreme  Court  of  Iowa.] 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered 
the  opinion  of  the  court. 

The  power  vested  in  Congress  "to  regulate  commerce  with  for- 
eign nations,  and  among  the  several  States,  and  with  the  Indian 
tribes,"  is  the  power  to  prescribe  the  rule  by  which  that  commerce 
is  to  be  governed,  and  is  a  power  complete  in  itself,  acknowledg- 
ing no  limitations  other  than  those  prescribed  in  the  Constitution. 
It  is  co-extensive  with  the  subject  on  which  it  acts  and  cannot  be 
stopped  at  the  external  boundary  of  a  State,  but  must  enter  its  in- 
terior and  must  be  capable  of  authorizing  the  disposition  of  those 
articles  which  it  introduces,  so  that  they  may  become  mingled 
with  the  common  mass  of  property  within  the  territory  entered. 
Gibbons  v.  Ogden,  9  Wheat.,  1;  Brown  v.  Maryland,  12  Wheat., 
419. 

And  while,  by  virtue  of  its  jurisdiction  over  persons  and  prop- 
erty within  its  limits,  a  State  may  provide  for  the  security  of  the 
lives,  limbs,  health  and  comforts  of  persons,  and  the  protection 
of  property  so  situated,  yet  a  subject-matter  which  has  been  con- 
fided exclusively  to  Congress  by  the  Constitution  is  not  within  the 
jurisdiction  of  the  police  power  of  the  State,  unless  placed  there 
by  congressional  action.  Henderson  v.  Mayor  of  Xew  York,  -92 
U.  S.,  259;  Eailroad  Co.  v.  Husen,  95  U.  S.,'465;  Walling  v.  Mich- 
igan, 116  U.  S.,  466;  Eobbins  v.  Shelby  Taxing  District,  120  U.  S., 
489.  The  power  to  regulate  commerce  among  the  States  is  a 
unit,  but  if  particular  subjects  within  its  operation  do  not  require 
the  application  of  a  general  or  uniform  system,  the  States  may 
legislate  in  regard  to  them  with  a  view  to  local  needs  and  cir- 
cumstances, until  Congress  otherwise  directs;  but  the  power  thus 
exercised  by  the  States  is  not  identical  in  its  extent  with  the  power 
to  regulate  commerce  between  the  States.  The  power  to  pass  laws 
in  respect  to  internal  commerce, -inspection  laws,  quarantine  laws, 
health  laws,  and  laws  in  relation  to  bridges,  ferries,  and  highways, 
belongs  to  the  class  of  powers  pertaining  to  locality,  essential  to 
local  intercommunication,  to  the  progress  and  development  of  local 
prosperity,  and  to  the  protection,  the  safety,  and  welfare  of  society, 
originally  necessarily  belonging  to,  and  upon  the  adoption  of  the 
Constitution  reserved  by,  the  States,  except  so  far  as  falling 
within  the  scope  of  a  power  confided  to  the  general  government. 


LEISY  V.  HARDIN.  271 

Where  the  subject-matter  requires  a  uniform  system  between  the 
States,  the  power  controlling  it  is  vested  exclusively  in  Congress, 
and  cannot  be  encroached  upon  by  the  States;  but  where,  in 
relation  to  the  subject  matter,  different  rules  may  be  suitable  for 
different  localities,  the  States  may  exercise  powers  which,  though 
they  may  be  said  to  partake  of  the  nature  of  the  power  granted 
to  the  general  government,  are  strictly  not  such,  but  are  simply 
local  powers,  which  have  full  operation  until  or  unless  circum- 
scribed by  the  action  of  Congress  in  effectuation  of  the  general 
power.    Cooley  v.  Port  Wardens  of  Philadelphia,  12  How.,  299. 

It  was  stated  in  the  32d  number  of  the  Federalist  that  the 
States  might  exercise  concurrent  and  independent  power  in  all 
cases  but  three:  First,  where  the  power  was  lodged  exclusi-«ely 
in  the  federal  constitution;  second,  where  it  was  given  to  the 
United  States  and  prohibited  to  the  States;  third,  where,  from 
the  nature  and  subjects  of  the  power,  it  must  be  necessarily  ex- 
ercised by  the  national  government  exclusively.  But  it  is  easy  to 
see  that  Congress  may  assert  an  authority  under  one  of  the  granted 
powers,  which  would  exclude  the  exercise  by  the  States  upon 
the  same  subject  of  a  different  but  similar  power,  between  which 
and  that  possessed  by  the  general  government  no  inherent  repug- 
nancy existed. 

Whenever,  however,  a  particular  power  of  the  general  govern- 
ment is  one  which  must  necessarily  be  exercised  by  it,  and  Con- 
gress remains  silent,  this  is  not  only  not  a  concession  that  the  pow- 
ers reserved  by  the  States  may  be  exerted  as  if  the  specific  power 
had  not  been  elsewhere  reposed,  but,  on  the  contrary,  the  only 
legitimate  conclusion  is  that  the  general  government  intended  that 
power  should  not  be  affirmatively  exercised,  and  the  action  of  the 
States  cannot  be  permitted  to  effect  that  which  would  be  incom- 
patible with  such  intention.  Hence,  inasmuch  as  interstate  com- 
merce, consisting  in  the  transportation,  purchase,  sale,  and  ex- 
change of  commodities,  is  national  in  its  character,  and  must  be 
governed  by  a  uniform  system,  so  long  as  Congress  does  not  pass 
any  law  to  regulate  it,  or  allowing  the  States  so  to  do,  it  thereby 
indicates  its  will  that  such  commerce  shall  be  free  and  untram- 
melled. County  of  Mobile  v.  Kimball,  102  U.  S.,  691;  Brown  v. 
Houston,  114  U.  S.,  622,  631;  Wabash,  St.  Louis,  &c..  Railway  v. 
Illinois,  118  U.  S.,  557;  Robbins  v.  Shelby  Taxing  District,  120 
U.  S.,  489,  493. 

That  ardent  spirits,  distilled  liquors,  ale  and  beer,  are  subjects 
of  exchange,  barter  and  traffic,  like  any  other  commodity,  in  which 
a  right  of  traffic  exists,  and  are  so  recognized  by  the  usages  of  the 


272  CASES  ON  CONSTITUTIONAL  LAW. 

commercial  world,  the  laws  of  Congress  and  the  decisions  of  courts, 
is  not  denied.  Being  thus  articles  of  commerce,  can  a  State,  in 
the  absence  of  legislation  on  the  part  of  Congress,  prohibit  their 
importation  from  abroad  or  from  a  sister  State?  or  when  imported 
prohibit  their  sale  by  the  importer?  If  the  importation  cannot 
be  prohibited  without  the  consent  of  Congress,  when  does  property 
imported  from  abroad,  or  from  a  sister  State,  so  become  part  of 
the  common  mass  of  property  within  a  State  as  to  be  subject  to  its 
unimpeded  control? 

In  Brown  v.  Maryland  (supra)  the  act  of  the  state  legislature 
drawn  in  question  was  held  invalid  as  repugnant  to  the  prohibi- 
tion of  the  Constitution  upon  the  States  to  lay  any  impost  or 
duty  upon  imports  or  exports,  and  to  the  clause  granting  the 
power  to  regulate  commerce;  and  it  was  laid  down  by  the  great 
magistrate  who  presided  over  this  court  for  more  than  a  third  of 
a  century,  that  the  point  of  time  when  the  prohibition  ceases 
and  the  power  of  the  State  to  tax  commences,  is  not  the  instant 
when  the  article  enters  the  country,  but  when  the  importer  has 
so  acted  upon  it  that  it  has  become  incorporated  and  mixed  up 
with  the  mass  of  property  in  the  country,  which  happens  when 
the  original  package  is  no  longer  such  in  his  hands;  that  the  dis- 
tinction is  obvious  between  a  tax  which  intercepts  the  import  as  an 
import  on  its  way  to  become  incorporated  with  the  general  mass 
of  property,  and  a  tax  which  finds  the  article  already  incorporated 
with  that  mass  by  the  act  of  the  importer;  that  as  to  the  power 
to  regulate  commerce,  none  of  the  evils  which  proceeded  from 
the  feebleness  of  the  federal  government  contributed  more  to  the 
great  revolution  which  introduced  the  present  system,  than  the 
deep  and  general  conviction  that  commerce  ought  to  be  regulated 
by  Congress;  that  the  grant  should  be  as  extensive  as  the  mischief, 
and  should  comprehend  all  foreign  commerce  and  all  commerce 
among  the  States;  that  that  power  was  complete  in  itself,  acknowl- 
edged no  limitations  other  than  those  prescribed  by  the  Consti- 
tution, was  co-extensive  with  the  subject  on  which  it  acts  and  not 
to  be  stopped  at  the  external  boundary  of  a  State,  but  must  be 
capable  of  entering  its  interior;  that  the  right  to  sell  any  article 
imported  was  an  inseparable  incident  to  the  right  to  import  it, 
and  that  the  principles  expounded  in  the  case  applied  equally 
to  importations  from  a  sister  State.  Manifestly  this  must  be  so, 
for  the  same  public  policy  applied  to  commerce  among  the  States 
as  to  foreign  commerce,  and  not  a  reason  could  be  assigned  for 
confiding  the  power  over  the  one  which  did  not  conduce  to  estab- 
lish the  propriety  of  confiding  the  power  over  the  other.     Story, 


LEISY  V.  HARDIN.  273 

Constitution,  §  1066.  And  although  the  precise  question  before 
us  was  not  ruled  in  Gibbons  v.  Ogden  and  Brown  v.  Maryland, 
yet  we  think  it  was  virtually  involved  and  answered,  and  that 
this  is  demonstrated,  among  other  cases,  in  Bowman  v.  Chicago  & 
Northwestern  Railway  Co.,  135  U.  S.,  465.  In  the  latter  case, 
section  1553  of  the.  Code  of  the  State  of  Iowa  as  amended  by  c. 
143  of  the  acts  of  the  twentieth  General  Assembly  in  1886,  forbid- 
ding common  carriers  to  bring  intoxicating  liquors  into  the  State 
from  any  other  State  or  Territory,  without  first  being  furnished 
with  a  certificate  as  prescribed,  was  declared  invalid,  because  essen- 
tially a  regulation  of  commerce  among  the  States,  and  not  sanc- 
tioned by  the  authority,  express  or  implied,  of  Congress.  The 
opinion  of  the  court,  delivered  by  Mr.  Justice  Matthews,  the  con- 
curring opinion  of  Mr.  Justice  Field,  and  the  dissenting  opinion 
by  Mr.  Justice  Harlan,  on  behalf  of  Mr.  Chief  Justice  Waite,  Mr. 
Justice  Gray,  and  himself,  discussed  the  question  involved  in  all 
its  phases;  and  while  the  determination  of  whether  the  right  of 
transportation  of  an  article  of  commerce  from  one  State  to  an- 
other includes  by  necessary  implication  the  right  of  the  con- 
signee to  sell  it  in  unbroken  packages  at  the  place  where  the 
transportation  terminates  was  in  terms  reserved,  yet  the  argu- 
ment of  the  majority  conducts  irresistibly  to  that  conclusion,  and 
we  think  we  cannot  do  better  than  repeat  the  grounds  upon  which 
the  decision  was  made  to  rest.  It  is  there  shown  that  the  trans- 
portation of  freight  or  of  the  subjects  of  commerce,  for  the  pur- 
pose of  exchange  or  sale,  is  beyond  all  question  a  constituent  of 
commerce  itself;  that  this  was  the  prominent  idea  in  the  minds 
of  the  framers  of  the  Constitution,  when  to  Congress  was  com- 
mitted the  power  to  regulate  commerce  among  the  several  States; 
that  the  power  to  prevent  embarrassing  restrictions  by  any  State 
was  the  end  desired;  that  the  power  was  given  by  the  same  words 
and  in  the  same  clause  by  which  was  conferred  power  to  regulate 
commerce  with  foreign  nations;  and  that  it  would  be  absurd  to 
suppose  that  the  transmission  of  the  subjects  of  trade  from  the 
State  of  the  buyer,  or  from  the  place  of  production  to  the  market, 
was  not  contemplated,  for  without  that  there  could  be  no  con- 
summated trade,  either  with  foreign  nations  or  among  the  States. 
It  is  explained  that  where  State  laws  alleged  to  be  regulations  of 
commerce  among  the  States,  have  been  sustained,  they  were  laws 
which  related  to  bridges  or  dams  across  streams,  wholly  within 
the  State,  or  police  or  health  laws,  or  to  subjects  of  a  kindred 
nature,  not  strictly  of  commercial  regulation.  But  the  trans- 
portation of  passengers  or  of  merchandise  from  one  State  to  an- 
18 


374  CASES   ON  CONSTITUTIONAL  LAW. 

other  is  in  its  nature  national,  admitting  of  but  one  regulating 
power;  and  it  was  to  guard  against  the  possibility  of  commercial 
embarrassments  which  would  result  if  one  State  could  directly  or 
indirectly  tax  persons  or  property  passing  through  it,  or  prohibit 
particular  property  from  entrance  into  the  State,  that  the  power 
of  regulating  commerce  among  the  States  was  conferred  upon  the 
federal  government. 

"If  in  the  present  case,"  said  Mr.  Justice  Matthews,  "the  law 
of  Iowa  operated  upon  all  merchandise  sought  to  be  brought  from 
another  State  into  its  limits,  there  could  be  no  doubt  that  it 
would  be  a  regulation  of  commerce  among  the  States,"  and  he 
concludes  that  this  must  be  so,  though  it  applied  only  to  one  class 
of  articles  of  a  particular  kind.  The  legislation  of  Congress  on 
the  subject  of  interstate  commerce  by  means  of  railroads,  designed 
to  remove  trammels  upon  transportation  between  different  States, 
and  upon  the  subject  of  the  transportation  of  passengers  and 
merchandise  (Revised  Statutes,  sections  4252  to  4289,  inclusive), 
including  the  transportation  of  nitroglycerine  and  other  similar 
explosive  substances,  with  the  proviso  that,  as  to  them,  "any 
State,  territory,  district,  city  or  town  within  the  United  States" 
should  not  be  prevented  by  the  language  used  "from  regulating  or 
from  prohibiting  the  traffic  in  or  transportation  of  those  sub- 
stances between  persons  or  places  lying  or  being  within  their  re- 
spective territorial  limits,  or  from  prohibiting  the  introduction 
thereof  into  such  limits  for  sale,  use  or  consumption  therein,"  is 
referred  to  as  indicative  of  the  intention  of  Congress  that  the 
transportation  of  commodities  between  the  States  shall  be  fi'ee, 
except  where  it  is  positively  restricted  by  Congress  itself,  or  by 
States  in  particular  cases  by  the  express  permission  of  Congress. 
It  is  said  that  the  law  in  question  was  not  an  inspection  law,  the 
object  of  which  "is  to  improve  the  quality  of  articles  produced  by 
the  labor  of  a  country,  to  fit  them  for  exportation;  or,  it  may  be, 
for  domestic  use;"  Gibbons  v.  Ogden,  9  Wheat.,  1,  203;  Turner  v. 
Maryland,  107  U.  S.,  38,  55;  nor  could  it  be  regarded  as  a  regula- 
tion of  quarantine  or  a  sanitary  provision  for  the  purpose  of  pro- 
tecting the  physical  health  of  the  community;-  nor  a  law  to  pre- 
vent the  introduction  into  the  State  of  diseases,  contagious,  in- 
fectious, or  otherwise.  Articles  in  such  a  condition  as  tend  to 
spread  disease  are  not  merchantable,  are  not  legitimate  subjects 
of  trade  and  commerce,  and  the  self-protecting  power  of  each 
State,  therefore,  may  be  rightfully  exerted  against  their  introduc- 
tion, and  such  exercise  of  power  cannot  be  considered  a  regulation 
of  commerce,  prohibited  by  the  Constitution;    and  the  observa- 


LEISY  V.  HARDIN.  275 

tions  of  Mr.  Justice  Catron,  in  The  License  Cases,  5  How.,  504, 
599,  are  quoted  to  the  effect  that  what  does  not  belong  to  com- 
merce is  within  the  jurisdiction  of  the  police  power  of  the  State, 
but  that  which  does  belong  to  commerce  is  within  the  jurisdiction 
of  the  United  States;  that  to  extend  the  police  power  over  subjects 
of  commerce  would  be  to  make  commerce  subordinate  to  that 
power,  and  would  enable  the  State  to  bring  within  the  police 
power  "any  article  of  consumption  that  a  State  might  wish  to  ex- 
clude, whether  it  belonged  to  that  which  was  drunk  or  to  food 
and  clotliing;  and  with  nearly  equal  claims  to  propriety,  as  malt 
liquors  and  the  products  of  fruits  other  than  grapes  stand  on  no 
higher  ground  than  the  light  wines  of  this  and  other  countries, 
excluded  in  effect  by  the  law  as  it  now  stands.  And  it  would  be 
only  another  step  to  regulate  real  or  supposed  extravagance  in  food 
and  clothing."  And  Mr.  Justice  Matthews  thus  proceeds,  p.  493: 
"For  the  purpose  of  protecting  its  people  against  the  evils  of  in- 
temperance, it  has  the  right  to  prohibit  the  manufacture  within 
its  limits  of  intoxicating  liquors;  it  may  also  prohibit  all  domestic 
commerce  in  them  between  its  own  inhabitants,  whether  the  arti- 
cles are  introduced  from  other  States  or  from  foreign  countries; 
it  may  punish  those  who  sell  them  in  violation  of  its  laws;  it 
may  adopt  any  measures  tending,  even  indirectly  and  remotely, 
to  make  the  policy  effective — until  it  passes  the  line  of  power 
delegated  to  Congress  under  the  Constitution.  It  cannot,  without 
the  consent  of  Congress,  express  or  implied,  regulate  commerce 
between  its  people  and  those  of  the  other  States  of  the  Union  in 
order  to  effect  its  end,  however  desirable  such  a  regulation  might 
be.  .  .  .  Can  it  be  supposed  that  by  omitting  any  express 
declaration  on  the  subject.  Congress  has  intended  to  submit  to 
the  several  States  the  decision  of  the  question  in  each  locality  of 
what  shall  and  what  shall  not  be  articles  of  traffic  in  the  inter- 
state commerce  of  the  country?  If  so,  it  has  left  to  each  State, 
according  to  its  own  caprice  and  arbitrary  will,  to  discriminate  for 
or  against  every  article  grown,  produced,  manufactured  or  sold 
in  any  State  and  sought  to  be  introduced  as  an  article  of  com- 
merce into  any  other.  If  the  State  of  Iowa  may  prohibit  the  im- 
portation of  intoxicating  liquors  from  all  other  States,  it  may  also 
include  tobacco,  or  any  other  article,  the  use  or  abuse  of  which  it 
may  deem  deleterious.  It  may  not  choose,  even,  to  be  governed 
by  considerations  growing  out  of  the  health,  comfort  or  peace  of 
the  community.  Its  policy  may  be  directed  to  other  ends.  It 
may  choose  to  establish  a  system  directed  to  the  promotion  and 
benefit  of  its  own  agriculture,  manufactures  or  arts  of  any  de- 


276  CASES   ON  CONSTITUTIONAL   LAW. 

scription,  and  prevent  the  introduction  and  sale  within  its  limits 
of  any  or  of  all  articles  that  it  may  select  as  coming  into  competi- 
tion with  those  which  it  seeks  to  protect.  The  police  power  of 
the  State  would  extend  to  such  cases,  as  well  as  to  those  in  which 
it  was  sought  to  legislate  in  behalf  of  the  health,  peace  and  morals 
of  the  people.  In  view  of  the  commercial  anarchy  and  confusion 
that  would  result  from  the  diverse  exertions  of  power  by  the  sev- 
eral States  of  the  Union,  it  cannot  be  supposed  that  the  Constitu- 
tion or  Congress  have  intended  to  limit  the  freedom  of  commercial 
intercourse   among   the  people   of  the   several    States."    .    .     . 

[Here  follow  extracts  from  the  opinion  of  Chief  Justice  Taney 
in  The  License  Cases,  5  Howard,  504.] 

But  conceding  the  weight  properly  to  be  ascribed  to  the  judicial 
utterances  of  this  eminent  jurist,  we  are  constrained  to  say  that 
the  distinctio'n  between  subjects  in  respect  of  which  there  can  be 
of  necessity  only  one  system  or  plan  of  regulation  for  the  whole 
country,  and  subjects  local  in  their  nature,  and,  so  far  as  relating 
to  commerce,  mere  aids  rather  than  regulations,  does  not  appear 
to  us  to  have  been  sufficiently  recognized  by  him  in  arriving  at 
the  conclusions  announced.  That  distinction  has  been  settled  by 
repeated  decisions  of  this  court,  and  can  no  longer  be  regarded  as 
open  to  re-examination.  After  all,  it  amounts  to  no  more  than 
drawing  the  line  between  the  exercise  of  power  over  commerce 
with  foreign  nations,  and  among  the  States,  and  the  exercise  of 
power  over  purely  local  commerce  and  local  concerns. 

The  authority  of  Peirce  v.  New  Hampshire,  in  so  far  as  it  rests 
on  the  view  that  the  law  of  Xew  Hampshire  was  valid  because 
Congress  has  made  no  regulation  on  the  subject,  must  be  regarded 
as  having  been  distinctly  overthi*own  by  the  numerous  cases  here- 
inafter referred  to. 

The  doctrine  now  firmly  established  is,  as  stated  by  Mr.  Justice 
Field,  in  Bowman  v.  Chicago,  &c.  Eailway  Co.,  125  U.  S.,  507, 
"that  where  the  subject  upon  which  Congress  can  ajct  under  its 
commercial  power  is  local  in  its  nature  or  sphere  of  operation,  such 
as  harbor  pilotage,  the  improvement  of  harbors,  the  establishment 
of  beacons  and  buoys  to  guide  vessels  in  and  out  of  port,  the  con- 
struction of  bridges  over  navigable  rivers;  erection  of  whai-ves, 
piers,  and  docks,  and  the  like,  which  can  be  properly  regulated 
only  by  special  provisions  adapted  to  their  localities,  the  State 
can  act  until  Congress  interferes  and  supersedes  its  authority; 
but  where  the  subject  is  national  in  its  character,  and  admits  and 
requires  uniformity  of  regulation,  affecting  alike  all  the  States, 


LEISY  V.  HARDIN.  277 

such  as  transportation  between  the  States,  including  the  importa-  4 
tion  of  goods  from  one  State  into  another,  Congress  can  alone  act  ' 
upon  it  and  provide  the  needed  regulations.  The  absence  of  any 
law  of  Congress  on  the  subject  is  equivalent  to  its  declaration 
that  commerce  in  that  matter  shall  be  free.  Thus  the  absence  of 
regulations  as  to  interstate  commerce  with  reference  to  any  par- 
ticular subject  is  taken  as  a  declaration  that  the  importation  of 
that  article  into  the  States  shall  be  unrestricted.  It  is  only  after 
the  importation  is  completed,  and  the  property  imported  has 
mingled  with  and  become  a  part  of  the  general  property  of  the 
State,  that  its  regulations  can  act  upon  it,  except  so  far  as  may  be 
necessary  to  insure  safety  in  the  disposition  of  the  import  until 
thus  mingled." 

The  conclusion  follows  that,  as  the  grant  of  the  power  to  regu- 
late commerce  among  the  States,  so  far  as  one  sysitem  is  required, 
is  exclusive,  the  States  cannot  exercise  that  power  without  the 
assent  of  Congress,  and,  in  the  absence  of  legislation,  it  is  left  for 
the  courts  to  determine  when  State  action  does  or  does  not  amount 
to  such  exercise,  or,  in  other  words,  what  is  or  is  not  a  regulation 
of  such  commerce.  When  that  is  determined,  controversy  is  at 
an  end.  Illustrations  exemplifying  the  general  rule  are  numer- 
ous. Thus  we  have  held  the  following  to  be  regulations  of  inter- 
state commerce:  A  tax  upon  freight  transported  from  State  to 
State.  Case  of  the  State  Freight  Tax,  15  Wall.,  232;  a  statute 
imposing  a  burdensome  condition  on  ship-masters  as  a  prerequi- 
site to  the  landing  of  passengers,  Henderson  v.  Mayor  of  New 
York,  92  U.  S.,  259;  a  statute  prohibiting  the  driving  or  convey- 
ing of  any  Texas,  Mexican  or  Indian  cattle,  whether  sound  or  dis- 
eased, into  the  State  between  the  first  day  of  March  and  the  first 
day  of  November  in  each  year,  Eailroad  Co.  v.  Husen,  95  U.  S., 
465;  a  statute  requiring  every  auctioneer  to  collect  and  pay  into 
the  state  treasury  a  tax  on  his  sales,  when  applied  to  imported 
goods  in  the  original  packages  by  him  sold  for  the  importer.  Cook 
V.  Pennsjdvania,  97  U.  S.,  566;  a  statute  intended  to  regulate  or 
tax,  or  to  impose  any  other  restrictions  upon,  the  transmission  of 
persons  or  property,  or  telegraphic  messages,  from  one  State  to 
another,  Wabash,  St,  Louis  &c.  Railway  v.  Illinois,  118  U.  S.,  557; 
a  statute  levying  a  tax  upon  non-resident  drummers  offering  for 
sale  or  selling  goods,  wares  or  merchandise  by  sample,  manufac- 
tured or  belonging  to  citizens  of  other  States,  Robbins  v.  Shelby 
Taxing  District,  120  U.  S.,  489. 

[Here  follow  similar  rules  derived  from  decisions  in  County  of 
Mobile  V.  Kimball,  102  U.  S.,  691;  Escanaba  Co.  v.  Chicago,  107 


278  CASES   ON  CONSTITUTIONAL   LAW. 

F.  S.,  678;  Transportation  Co.  v.  Parkersburg,  107  U.  S.,  691; 
Brown  v.  Houston,  114  U.  S.,  622;  Morgan  Steamship  Co.  v. 
Louisiana  Board  of  Health,  118  U.  S.,  455;  Smith  v.  Alabama, 
124  U.  S.,  465;  Nashville  &c.  Eailway  Co.  v.  Alabama,  128  U.  S., 
96;  Kimmish  v.  Ball,  129  U.  S.,  217;  Welton  v.  The  State  of 
Missouri,  91  U.  S.,  275;  Walling  v.  Michigan,  116  TJ.  S.,  446; 
Patterson  v.  Kentucky,  97  U.  S.,  501;  Webber  v.  Virginia,  103 
U.  S.,  344;  Mugler  v.  Kansas,  123  U.  S.,  623;  Bartemeyer  v. 
Iowa,  18  Wall.,  129;  Beer  Company  v.  Massachusetts,  97  U.  S., 
25;  Foster  v.  Kansas,  112  U.  S.,  201;  Kidd  v.  Pearson,  128  U.  S., 
1;  and  Eilenbecker  v.  District  Court  of  Plymouth  County,  134 
U.  S.,  31.] 

These  decisions  rest  upon  the  undoubted  right  of  the  States  of 
the  Union  to  control  their  purely  internal  affairs,  in  doing  which 
they  exercise  powers  not  surrendered  to  the  national  government; 
but  whenever  the  law  of  the  State  amounts  essentially  to  a  regu- 
lation of  commerce  with  foreign  nations  or  among  the  States,  as 
it  does  when  it  inhibits,  directly  or  indirectly,  the  receipt  of  an 
imported  commodity  or  its  disposition  before  it  has  ceased  to  be- 
come an  article  of  trade  between  one  State  and  another,  or  an- 
other country  and  this,  it  comes  in  conflict  with  a  power  which,  in 
this  particular,  has  been  exclusively  vested  in  the  general  gov- 
ernment, and  is  therefore  void. 

In  Mugler  v.  Kansas,  supra,  the  court  said  (p.  662)  that  it 
could  not  "shut  out  of  view  the  fact,  within  the  knowledge  of  all, 
that  the  public  health,  the  public  morals  and  the  public  safety 
may  be  endangered  by  the  general  use  of  intoxicating  drinks;  nor 
the  fact,  established  by  statistics  accessible  to  every  one,  that  the 
idleness,  disorder,  pauperism  and  crime  existing  in  the  country 
are,  in  some  degree  at  least,  traceable  to  this  evil."  And  that  "if 
in  the  judgment  of  the  legislature  [of  a  State]  the  manufacture  of 
intoxicating  liquors  for  the  maker's  own  use,  as  a  beverage,  would 
tend  to  cripple,  if  it  did  not  defeat,  the  effort  to  guard  the  com- 
munity against  the  evils  attending  the  excessive  use  of  such 
liquors,  it  is  not  for  the  courts,  upon  their  views  as  to  what  is 
best  and  safest  for  the  community,  to  disregard  the  legislative 
determination  of  that  question.  .  .  .  Nor  can  it  be  said  that 
government  interferes  with  or  impairs  any  one's  constitutional 
rights  of  liberty  or  of  property,  when  it  determines  that  the  man- 
ufacture and  sale  of  intoxicating  drinks,  for  general  or  individual 
use,  as  a  beverage,  are,  or  may  become,  hurtful  to  society,  and 
constitute,  therefore,  a  business  in  which  no  one  may  lawfully 
engage."     Undoubtedly,  it  is  for  the  legislative  branch  of  the 


LEISY  V.  HARDIN.  379 

state  governments  to  determine  whether  the  manufacture  of  par- 
ticular articles  of  traffic,  or  the  sale  of  such  articles,  will  injuri- 
ously affect  the  public,  and  it  is  not  for  Congress  to  determine 
what  measures  a  State  may  properly  adopt  as  appropriate  or  need- 
ful for  the  protection  of  the  public  morals,  the  public  health,  or 
the  public  safety;  but  notwithstanding  it  is  not  vested  with  super- 
visory power  over  matters  of  local  administration,  the  responsi- 
bility is  upon  Congress,  so  far  as  the  regulation  of  interstate  com- 
merce is  concerned,  to  remove  the  restriction  upon  the  State  in 
dealing  with  imported  articles  of  trade  within  its  limits,  which 
have  not  been  mingled  with  the  common  mass  of  property  therein, 
if  in  its  judgment  the  end  to  be  secured  justifies  and  requires  such 
action. 

Prior  to  1888  the  statutes  of  Iowa  permitted  the  sale  of  foreign 
liquors  imported  under  the  laws  of  the  United  States,  provided 
the  sale  was  by  the  importer  in  the  original  casks  or  packages, 
and  in  quantities  not  less  than  those  in  which  they  were  required 
to  be  imported;  and  the  provisions  of  the  statute  to  this  effect 
were  declared  by  the  Supreme  Court  of  Iowa,  in  Pearson  v.  Inter- 
national Distillery,  72  Iowa,  348,  354,  to  be  "intended  to  conform 
the  statute  to  the  doctrine  of  the  United  States  Supreme  Court, 
announced  in  Brown  v.  Maryland,  12  Wheat.,  419,  and  License 
Cases,  5  How.,  504,  so  that  the  statute  should  not  conflict  with 
the  laws  and  authority  of  the  United  States."  But  that  provision 
of  the  statute  was  repealed  in  1888,  and  the  law  so  far  amended 
that  we  understand  it  now  to  provide  that,  whether  imported  or 
not,  wine  cannot  be  sold  in  Iowa  except  for  sacramental  purposes, 
nor  alcohol,  except  for  specified  chemical  purposes,  nor  intoxicat- 
ing liquors,  including  ale  and  beer,  except  for  pharmaceutical  and 
medicinal  purposes,  and  not  at  all  except  by  citizens  of  the  State 
of  Iowa,  who  are  registered  pharmacists,  and  have  permits  obtained 
as  prescribed  by  the  statute,  a  permit  being  also  grantable  to  one 
discreet  person  in  any  township  where  a  pharmacist  does  not  ob- 
tain it. 

The  plaintiffs  in  error  are  citizens  of  Illinois,  are  not  pharma- 
cists, and  have  no  permit,  but  import  into  Iowa  beer,  which  they 
sell  in  original  packages,  as  described.  Under  our  decision  in 
Bowman  v.  Chicago  &c.  Railway  Co.,  supra,  they  had  the  right  to 
import  this  beer  into  that  State,  and  in  the  view  which  we  have 
expressed  they  had  the  right  to  sell  it,  by  which  act  alone  it 
would  become  mingled  in  the  common  mass  of  property  within 
the  State.  Up  to  that  point  of  time,  we  hold  that  in  the  absence 
of  congressional  permission  to  do  so,  the  State  had  no  power  to 


280  CASES   ON  CONSTITUTIONAL   LAW. 

interfere  by  seizure,  or  any  other  action,  in  prohibition-  of  importa- 
tion and  sale  by  the  foreign  or  non-resident  importer.  Whatever 
our  individual  views  may  be  as  to  the  deleterious  or  dangerous 
qualities  of  particular  articles,  we  cannot  hold  that  any  articles 
which  Congress  recognizes  as  subjects  of  interstate  commerce  are 
not  such  or  that  whatever  are  thus  recognized  can  be  controlled 
by  state  laws  amounting  to  regulations,  while  tliey  retain  that 
character;  although,  at  the  same  time,  if  directly  dangerous  in 
themselves,  the  State  may  take  appropriate  measures  to  guard 
against  injury  before  it  obtains  complete  jurisdiction  over  them. 
To  concede  to  a  State  the  power  to  exclude,  directly  or  indirectly, 
articles  so  situated,  without  congressional  permission,  is  to  eon- 
cede  to  a  majority  of  the  people  of  a  State,  represented  in  the 
state  legislature,  the  power  to  regulate  commercial  intercourse  be- 
tween the  States,  by  determining  what  shall  be  its  subjects,  when 
that  power  was  distinctly  granted  to  be  exercised  by  the  people 
of  the  United  States,  represented  in  Congress,  and  its  possession 
by  the  latter  was  considered  essential  to  that  more  perfect  union 
which  the  Constitution  was  adopted  to  create.  Undoubtedly,  there 
is  difficulty  in  drawing  the  line  between  the  municipal  powers  of 
the  one  government  and  the  commercial  powers  of  the  other,  but 
when  that  line  is  determined,  in  the  particular  instance,  accom- 
modation to  it,  without  serious  inconvenience,  may  readily  be 
found,  to  use  the  language  of  Mr.  Justice  Johnson,  in  Gibbons  v. 
Ogden,  9  Wheat.,  1,  238,  in  "a  frank  and  candid  co-operation  for 
the  general  good." 

The  legislation  in  question  is  to  the  extent  indicated  repugnant 
to  the  third  clause  of  section  8  of  Art.  1  of  the  Constitution  of  the 
United  States,  and  therefore  the  judgment  of  the  Supreme  Court 
of  Iowa  is 

Reversed  and  the  cause  remanded  for  further  jjroeeedings  not 
inconsistent  with  this  opinion. 

Mr.  Justice  Gray,  with  whom  concurred  Mr.  Justice  Har- 
lan and  Mr.  Justice  Brewer,  dissenting.     .     .     . 

Note. — The  application  of  this  case  was  restricted  and  its  doc- 
trine greatly  modified  by  the  decision  of  the  court  in  Plumley 
v.  Massachusetts,  155  U.  S.,  461   (1894). 


MINNESOTA  v.   BARBER.  281 

MINNESOTA    v.    BARBER. 
136  U.  S.,  313.    Decided  1890. 
[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Mr.  Justice  Haelan  delivered  the  opinion  of  the  court. 

Henry  E.  Barber,  the  appellee,  was  convicted  before  a  justice 
of  the  peace  in  Ramsey  County,  Minnesota,  of  the  offense  of  hav- 
ing wrongfully  and  unlawfully  offered  and  exposed  for  sale,  and 
of  having  sold  for  human  food,  one  hundred  pounds  of  fresh  un- 
cured  beef,  part  of  an  animal  slaughtered  in  the  State  of  Illinois, 
but  which  had  not  been  inspected  in  Minnesota,  and  "certified" 
before  slaughter  by  an  inspector  appointed  under  the  laws  of  the 
lat-ter  State.  Having  been  committed  to  the  common  Jail  of  the 
county  pursuant  to  a  judgment  of  imprisonment  for  a  term  of 
thirty  days,  he  sued  out  a  writ  of  habeas  corpus  from  the  Circuit 
Court  of  the  United  States  for  the  District  of  Minnesota,  and 
prayed  to  be  discharged  from  such  imprisonment,  upon  the  ground 
that  the  statute  of  that  State,  approved  April  16,  1889,  and  under 
which  he  was  prosecuted,  was  repugnant  to  the  provision  of  the 
Constitution  giving  Congress  power  to  regulate  commerce  among 
the  several  States,  as  well  as  to  the  provision  declaring  that  the 
citizens  of  each  State  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  States.  Art.  1,  Sec.  8.  Art.  4, 
Sec.  2.  The  court  below,  speaking  by  Judge  Nelson,  held  the 
statute  to  be  in  violation  of  both  of  these  provisions,  and  dis- 
charged the  prisoner  from  custody.  In  re  Barber,  39  Fed.  Rep., 
641.  A  similar  conclusion  in  reference  to  the  same  statute  had 
been  previously  reached  by  Judge  Blodgett,  liolding  the  Circuit 
Court  of  the  United  States  for  the  Northern  District  of  Illinois. 
Swift  V.  Sutphin,  39  Fed.  Rep.,  630. 

From  the  judgment  discharging  Barber  the  State  has  prosecuted 
the  present  appeal.    Rev.  Stat.,  §  764;   23  Stat.,  437,  c.  353, 

Attorneys  representing  persons  interested  in  maintaining  the 
validity  of  a  statute  of  Indiana,  alleged  to  be  similar  to  that  of 
Minnesota,  were  allowed  to  participate  in  the  argument  in  this 
court,  and  to  file  briefs. 

The  statute  of  Minnesota  upon  the  validity  of  which  the  de- 
cision of  the  case  depends  is  as  follows:  Laws  of  1889,  c.  8,  p. 
51.  .  .  .  [Here  follows  the  full  text  of  the  act,  which  is  en- 
titled "An  act  for  the  protection  of  the  public  health  by  providing 
for  inspection,  before  slaughter,  of  cattle,  sheep  and  swine  de- 


282  CASES   ON  CONSTITUTIONAL  LAW. 

signed  for  slaughter  for  human  food."  It  required  that  animals 
thus  described  should  be  inspected  by  State  officers  within  twenty- 
four  hours  before  they  are  slaughtered.  If  found  fit  for  slaughter, 
certificates  to  that  effect  should  be  given;  if  not  found  fit,  they 
should  be  removed  and  destroyed.] 

The  presumption  that  this  statute  was  enacted,  in  good  faith, 
for  the  purpose  expressed  in  the  title, — namely,  to  protect  the 
health  of  the  people  of  Minnesota, — cannot  control  the  final  de- 
termination of  the  question  whether  it  is  not  repugnant  to  the 
Constitution  of  the  United  States.  There  may  be  no  purpose 
upon  the  part  of  a  legislature  to  violate  the  provisions  of  that  in- 
strument, and  yet  a  statute  enacted  by  it,  under  the  forms  of  law, 
may,  by  its  necessary  operation,  be  destructive  of  rights  granted 
or  secured  by  the  Constitution.  In  such  cases,  the  courts  must 
sustain  the  supreme  law  of  the  land  by  declaring  the  statute  un- 
constitutional and  void.  This  principle  of  constitutional  inter- 
pretation has  been  often  announced  by  this  court.  In  Henderson 
&c.  V.  New  York  &c.,  92  U.  S.,  259,  268,  where  a  statute  of  New 
York  imposing  burdensome  and  almost  impossible  conditions  on 
the  landing  of  passengers  from  vessels  employed  in  foreign  com- 
merce, was  held  to  be  unconstitutional  and  void  as  a  regulation  of 
such  commerce,  the  court  said  that  "in  whatever  language  a 
statute  may  be  framed,  its  purpose  must  be  determined  by  its  nat- 
ural and  reasonable  effect."  In  People  v.  Compagnie  Generale 
Transatlantique,  107  U.  S.,  59,  63,  where  the  question  was  as  to 
the  validity  of  a  statute  of  the  same  State,  which  was  attempted 
to  be  supported  as  an  inspection  law  authorized  by  section  10  of 
article  1  of  the  Constitution,  and  was  so  designated  in  its  title,  it 
was  said:  "A  State  cannot  make  a  law  designed  to  raise  money  to 
support  paupers,  to  detect  or  prevent  crimes,  to  guard  against  dis- 
ease and  to  cure  the  sick,  an  inspection  law,  within  the  constitu- 
tional meaning  of  that  word,  by  calling  it  so  in  the  title."  So, 
in  Soon  Hing  v.  Crowley,  113  U.  S.,  703,  710:  "The  rule  is 
general,  with  reference  to  the  enactments  of  all  legislative  bodies, 
that  the  courts  cannot  inquire  into  the  motives  of  the  legislators 
in  passing  them,  except  as  they  may  be  disclosed  on  the  face  of 
the  acts,  or  inferrible  from  their  operation,  considered  with  refer- 
ence to  the  condition  of  the  country  and  existing  legislation.  The 
motives  of  the  legislators,  considered  as  the  purposes  they  had  in 
view,  will  always  be  presumed  to  be  to  accomplish  that  which 
follows  as  the  natural  and  reasonable  effect  of  their  enactments." 
In  Mugler  v.  Kansas,  123  U.  S.,  623,  661,  the  court,  after  observ- 
ing that  every  possible  presumption  is  to  be  indulged  in  favor  of 


MINNESOTA  v.  BARBER.  283 

the  validity  of  a  statute,  said  that  the  judiciary  must  obey  the 
Constitution  rather  than  the  lawmaking  department  of  the  gov- 
ernment, and  must,  upon  its  own  responsibility,  determine  wheth- 
er, in  any  particular  case,  the  limits  of  the  Constitution  have  been 
passed.  It  was  added:  "If,  therefore,  a  statute  purporting  to 
have  been  enacted  to  protect  the  public  health,  the  public  morals 
or  the  public  safety,  has  no  real  or  substantial  relation  to  those 
objects,  or  is  a  palpable  invasion  of  rights  secured  by  the  funda- 
mental law,  it  is  the  duty  of  the  courts  to  so  adjudge,  and  thereby 
give  effect  to  the  Constitution."  Upon  the  authority  of  those 
eases,  and  others  that  could  be  cited,  it  is  our  duty  to  inquire,  in 
respect  to  the  statute  before  us,  not  only  whether  there  is  a  real 
or  substantial  relation  between  its  avowed  objects  and  the  means 
devised  for  attaining  those  objects,  but  whether  by  its  necessary 
or  natural  operation  it  impairs  or  destroys  rights  secured  by  the 
Constitution  of  the  United  States. 

Underlying  the  entire  argument  in  behalf  of  the  State  is  the 
proposition  that  it  is  impossible  to  tell,  by  an  inspection  of  fresh 
beef,  veal,  mutton,  lamb,  or  pork,  designed  for  human  food, 
whether  or  not  it  came  from  animals  that  were  diseased  when 
slaughtered;  that  inspection  on  the  hoof,  within  a  very  short  time 
before  animals  are  slaughtered,  is  the  only  mode  by  which  their 
condition  can  be  ascertained  with  certainty.  And  it  is  insisted, 
with  great  confidence,  that  of  this  fact  the  court  must  take  judicial 
notice.  If  a  fact,  alleged  to  exist,  and  upon  which  the  rigrhts  of 
parties  denend  is  within  common  experience  and  knowledge,  it 
is  one  of  which  the  courts  will  take  judicial  notice.  Brown  v. 
Piper,  91  U.  S.,  37,  42;  Phillips  v.  Detroit,  111  U.  S.,  604,  606. 
But  we  cannot  assent  to  the  suggestion  that  the  fact  alleged  in 
this  case  to  exist  is  of  that  class.  It  may  be  the  opinion  of  some 
that  the  presence  of  disease  in  animals  at  the  time  of  their  being 
slaughtered,  cannot  be  determined  by  inspection  of  the  meat 
taken  from  them;  but  we  are  not  aware  that  such  is  the  view 
universally,  or  even  generally,  entertained.  But  if,  as  alleged,  the 
inspection  of  fresh  beef,  veal,  mutton,  lamb,  or  pork  will  not 
necessarily  show  whether  the  animal  from  which  it  was  taken 
was  diseased  when  slaughtered,  it  would  not  follow  that  a  statute 
like  the  one  before  us  is  within  the  constitutional  power  of  the 
State  to  enact.  On  the  contrary,  the  enactment  of  a  similar  stat- 
ute by  each  one  of  the  States  composing  the  Union  would  result 
in  the  destruction  of  commerce  among  the  several  States,  so  far 
as  such  commerce  is  involved  in  the  transportation  from  one  part 
of  the  country  to  another  of  animal  meats  designed  for  human 


384  CASES   ON  CONSTITUTIONAL  LAW. 

food,  and  entirely  free  from  disease.    A  careful  examination  of  the 
Minnesota  act  will  place  this  constrution  of  it  beyond  question. 

The  first  section  prohibits  the  sale  of  any  fresh  beef,  veal,  mut- 
ton, lamb,  or  pork  for  human  food,  except  as  provided  in  that 
act.  The  second  and  third  sections  provide  that  all  cattle,  sheep, 
and  swine  to  be  slaughtered  for  huma>a  food  within  the  respective 
jurisdictions  of  the  inspectors,  shall  be  inspected  by  the  proper 
local  insj^ector  appointed  in  Minnesota,  within  twenty-four  hours 
before  the  animals  are  slaughtered,  and  that  a  certificate  shall  be 
made  by  such  inspector,  showing  (if  such  be  the  fact)  that  the 
animals,  when  slaughtered,  were  found  healthy  and  in  suitable 
condition  to  be  slaughtered  for  human  food.  The  fourth  section 
makes  it  a  misdemeanor,  punishable  by  fine  or  imprisonment,  for 
any  one  to  sell,  expose,  or  offer  for  sale,  for  human  food,  in  the 
State,  any  fresh  beef,  veal,  mutton,  lamb,  or  pork,  not  taken  from 
an  animal  inspected  and  "certified  before  slaughter,  by  the  proper 
local  inspector"  appointed  under  that  act.  As  the  inspection 
must  take  place  within  twenty-four  hours  immediately  before  the 
slaughtering,  the  act,  by  its  necessary  operation,  excludes  from 
the  Minnesota  market,  practically,  all  fresh  beef,  veal,  mutton, 
lamb,  or  pork — ^in  whatever  form,  and  although  entirely  sound, 
healthy,  and  fit  for  human  food — taken  from  animals  slaughtered 
in  other  States;  and  directly  tends  to  restrict  the  slaughtering  of 
animals,  whose  meat  is  to  be  sold  in  Minnesota  for  human  food,  to 
those  engaged  in  such  business  in  that  State.  This  must  be  so, 
because  the  time,  expense,  and  labor  of  sending  animals  from 
points  outside  of  Minnesota  to  points  in  that  State  to  be  there  in- 
spected, and  bringing  them  back,  after  inspection,  to  be  slaught- 
ered at  the  place  from  which  they  were  sent — the  slaughtering  to 
take  place  within  twenty-four  hours  after  inspection,  else  the  cer- 
tificate of  inspection  becomes  of  no  value — will  be  so  great  as  to 
amount  to  an  absolute  prohibition  upon  sales,  in  Minnesota,  of 
meats  from  animals  not  slaughtered  within  its  limits.  When  to 
this  is  added  the  fact  that  the  statute,  by  its  necessary  operation, 
prohibits  the  sale,  in  the  State,  of  fresh  beef,  veal,  mutton,  lamb, 
or  pork,  from  animals  that  may  have  been  inspected  carefully  and 
thoroughly  in  the  State  where  they  were  slaughtered,  and  before 
they  were  slaughtered,  no  doubt  can  remain  as  to  its  effect  upon 
commerce  among  the  several  States.  It  will  not  do  to  say — cer- 
tainly no  Judicial  tribunal  can,  with  propriety,  assume — that  the 
people  of  Minnesota  may  not,  with  due  regard  to  their  health, 
rely  upon  inspections  in  other  States  of  animals  there  slaughtered 
for  purposes  of  human  food.     If  the  object  of  the  statute  had 


MINNESOTA  v.   BARBER.  285 

been  to  deny  altogether  to  the  citizens  of  other  States  the  privi- 
lege of  selling,  within  the  limits  of  Minnesota,  for  human  food, 
any  fresh  beef,  veal,  mutton,  lamb,  or  pork,  from  animals  slaugh- 
tered outside  of  that  State,  and  to  compel  the  people  of  Minnesota, 
wishing  to  buy  such  meats,  either  to  purchase  those  taken  from 
animals  inspected  and  slaughtered  in  the  State,  or  to  incur  the 
cost  of  purchasing  them,  when  desired  for  their  own  domestic  use, 
at  points  beyond  the  State,  that  object  is  attained  by  the  act  in 
question.  Our  duty  to  maintain  the  Constitution  will  not  permit 
us  to  shut  our  eyes  to  these  obvious  and  necessary  results  of  the 
Minnesota  statute.  If  this  legislation  does  not  make  such  dis- 
crimination against  the  products  and  business  of  other  States  in 
favor  of  the  products  and  business  of  Minnesota  as  interferes  with 
and  burdens  commerce  among  the  several  'States,  it  would  be  dif- 
ficult to  enact  legislation  that  would  have  that  result.     .     .     , 

The  latest  case  in  this  court  upon  the  subject  of  interstate  com- 
merce, as  affected  by  local  enactments  discriminating  against  the 
products  and  citizens  of  other  States,  is  Walling  v.  Michigan.  116 
U.  S.,  446,  455.  We  there  held  to  be  unconstitutional  a  statute  of 
Michigan,  imposing  a  license  tax  upon  persons,  not  residing  or 
having  their  principal  place  of  business  in  that  State,  but  whose 
business  was  that  of  selling  or  soliciting  the  sale  of  intoxicating 
liquors  to  be  shipped  into  the  State  from  places  without,  a  similar 
tax  not  being  imposed  in  respect  to  the  sale  and  soliciting  for  sale 
of  liquors  manufactured  in  Michigan.  Mr.  Justice  Bradley,  deliv- 
ering the  opinion  of  the  court,  said:  "A  discriminating  tax  im- 
posed by  a  State  operating  to  the  disadvantage  of  the  products 
of  other  States  when  introduced  into,  the  first-mentioned  State, 
is,  in  effect,  a  regulation  in  restraint  of  commerce  among  the 
States,  and  as  such  is  a  usurpation  of  the  power  conferred  by  the 
Constitution  upon  the  Congress  of  the  United  States." 

It  is,  however,  contended,  in  behalf  of  the  State,  that  there  is, 
in  fact,  no  interference,  by  this  statute,  with  the  bringing  of  cattle, 
sheep,  and  swine  into  Minnesota  from  other  States,  nor  any  dis- 
crimination against  the  products  of  business  of  other  States,  for 
the  reason — such  is  the  argument — that  the  statute  requiring  an 
inspection  of  animals  on  the  hoof,  as  a  condition  of  the  privilege 
of  selling,  or  offering  for  sale,  in  the  State,  the  meats  taken  from 
them,  is  applicable  alike  to  all  owners  of  such  animals,  whether 
citizens  of  Minnesota  or  citizens  of  other  States.  To  this  we  an- 
swer, that  a  statute  may,  upon  its  face,  apply  equally  to  the  people 
of  all  the  States,  and  yet  be  a  regulation  of  interstate  commerce 
which  a  State  may  not  establish.     A  burden  imposed  by  a  State 


286  CASES  ON  CONSTITUTIONAL  LAW. 

upon  interstate  commerce  is  not  to  be  sustained  simply  because 
the  statute  imposing  it  applies  alike  to  the  people  of  all  the  States, 
including  the  people  of  the  State  enacting  such  statute.  Bobbins 
V.  Shelby  Taxing  District,  120  U.  S.,  489,  497;  Case  of  the  State 
Freight  Tax,  15  Wall.,  232.  The  people  of  Minnesota  have  as 
much  right  to  protection  against  the  enactments  of  that  State,  in- 
terfering with  the  freedom  of  commerce  among  the  States,  as  have 
the  people  of  other  States.  Although  this  statute  is  not  avowedly, 
or  in  terms,  directed  against  the  bringing  into  Minnesota  of  the 
products  of  other  States,  its  necessary  effect  is  to  burden  or  ob- 
struct commerce  with  other  States,  as  involved  in  the  transporta- 
tion into  that  State,  for  purposes  of  sale  there,  of  all  fresh  beef, 
veal,  mutton,  lamb,  or  pork,  however  free  from  disease  may  have 
been  the  animals  from  which  it  was  taken. 

The  learned  counsel  for  the  State  relies  with  confidence  upon 
Patterson  v.  Kentucky,  97  U.  S.,  501,  as  supporting  the  principles 
for  which  he  contends.  .  .  .  [This  decision  upheld  as  a 
proper  exercise  of  the  police  power  a  Kentucky  statute  forbidding 
the  sale  in  that  State  of  illuminating  oils  that  would  ignite  below  a 
certain  temperature.]  Now,  the  counsel  of  the  State  asks:  If 
the  State  may,  by  the  exercise  of  its  police  power,  determine  for 
itself  what  test  shall  be  made  of  the  safety  of  illuminating  oils, 
and  prohibit  the  sale  of  all  oils  not  subjected  to  and  sustaining 
such  test,  although  such  oils  are  manufactured  by  a  process  pat- 
ented under  the  Constitution  and  laws  of  the  United  States,  why 
may  it  not  determine  for  itself  what  test  shall  be  made  of  the 
wholesomeness  and  safety  of  food  and  prohibit  the  sale  of  all  such 
food  not  submitted  to  and  sustaining  the  test,  although  it  may 
chance  that  articles  otherwise  subject  to  the  Constitution  and  laws 
of  the  United  States  cannot  sustain  the  test?  The  analogy,  the 
learned  counsel  observes,  seems  close.  But  it  is  only  seemingly 
close.  There  is  no  real  analogy  between  that  case  and  the  one  be- 
fore us.  The  Kentucky  statute  prescribed  no  test  of  inspection 
which,  in  view  of  the  nature  of  the  property,  was  either  unusual  or 
unreasonable,  or  which  by  its  necessary  operation  discriminated 
against  any  particular  oil  because  of  the  locality  of  its  production. 
If  it  had  prescribed  a  mode  of  inspection  to  which  citizens  of  other 
States,  having  oils  designed  for  illuminating  purposes  and  which 
they  desired  to  sell  in  the  Kentucky  market,  could  not  have  rea- 
sonably conformed,  it  would  undoubtedly  have  been  held  to  be  an 
unauthorized  burden  upon  interstate  commerce.  Looking  at  the 
nature  of  the  property  to  which  the  Kentucky  statute  had  refer- 
ence, there  was  no  difficulty  in  the  way  of  the  patentee  of  the 


MINNESOTA  v.   BARBER.  287 

particular  oil  there  in  question  submitting  to  the  required  local 
inspection. 

But  a  law  providing  for  the  inspection  of  animals  whose  meats 
are  designed  for  human  food  cannot  be  regarded  as  a  rightful  ex- 
ertion of  the  police  powers  of  the  State,  if  the  inspection  pre- 
scribed is  of  such  a  character,  or  is  burdened  with  such  conditions, 
as  will  prevent  altogether  the  introduction  into  the  State  of  sound 
meats,  the  product  of  animals  slaughtered  in  other  States.  It  is 
one  thing  for  a  State  to  exclude  from  its  limits  cattle,  sheep,  or 
swine,  actually  diseased,  or  meats  that,  by  reason  of  their  con- 
dition, or  the  condition  of  the  animals  from  which  they  are  taken, 
are  unfit  for  human  food,  and  punish  all  sales  of  such  animals  or 
of  such  meats  within  its  limits.  It  is  quite  a  different  thing  for  a 
State  to  declare,  as  does  Minnesota  by  the  necessary  operation  of 
its  statute,  that  fresh  beef,  veal,  mutton,  lamb,  or  pork — articles 
that  are  used  in  every  part  of  this  country  to  support  human 
life — shall  not  be  sold  at  all  for  human  food  within  its  limits, 
unless  the  animal  from  which  such  meats  are  taken  is  inspected 
in  that  State,  or,  as  is  practically  said,  unless  the  animal  is  slaugh- 
tered in  that  State. 

One  other  suggestion  by  the  counsel  for  the  State  deserves  to 
be  examined.  It  is,  that  so  far  as  this  statute  is  concerned,  the 
people  of  Minnesota  can  purchase  in  other  States  fresh  beef,  veal, 
mutton,  lamb,  and  pork,  and  bring  such  meats  into  Minnesota  for 
their  own  personal  use.  We  do  not  perceive  that  this  view 
strengthens  the  case  for  the  State,  for  it  ignores  the  right  which 
people  of  other  States  have  in  commerce  between  those  States  and 
the  State  of  Minnesota.  And  it  ignores  the  right  of  the  people  of 
Minnesota  to  bring  into  that  State,  for  purposes  of  sale,  sound  and 
healthy  meat,  wherever  such  meat  may  have  come  into  existence. 
But  there  is  a  consideration  arising  out  of  the  suggestion  just 
alluded  to  which  militates  somewhat  against  the  theory  that  the 
statute  in  question  is  a  legitimate  exertion  of  the  police  powers  of 
the  State  for  the  protection  of  the  public  health.  If  every  hotel- 
keeper,  railroad  or  mining  corporation,  or  contractor,  in  Minne- 
sota, furnishing  subsistence  to  large  numbers  of  persons,  and  every 
private  family  in  that  State,  that  is  so  disposed,  can,  without  vio- 
lating this  statute,  bring  into  the  State  from  other  States  and  use 
for  their  own  purposes,  fresh  beef,  veal,  mutton,  lamb  and  pork, 
taken  from  animals  slaughtered  outside  Minnesota  which  may  not 
have  been  inspected  at  all,  or  not  within  twenty-four  hours  before 
being  slaughtered,  what  becomes  of  the  argument,  pressed  with 
so  much  earnestness,  that  the  health  of  the  people  of  that  State 


288  CASES   ON   CONSTITUTIONAL   LAW. 

requires  that  they  be  protected  against  the  use  of  meats  from 
animals  not  inspected  in  Minnesota  within  the  twenty-four 
liours  before  being  slaughtered?  If  the  statute,  while  permitting 
the  sale  of  meats  from  animals  slaughtered,  inspected  and  "certi- 
fied" in  that  State,  had  expressly  forbidden  the  introduction  from 
other  States,  and  their  sale  in  Minnesota,  of  all  fresh  meats,  of 
every  kind,  without  making  any  distinction  between  those  that 
were  from  animals  inspected  on  the  hoof  and  those  that  were  not 
so  inspected,  its  unconstitutionality  could  not  have  been  doubted. 
And  yet  it  is  so  framed  that  this  precise  result  is  attained  as  to 
all  sales  in  Minnesota,  for  human. food,  of  meats  from  animals 
slaughtered  in  other  States. 

In  the  opinion  of  this  court  the  statute  in  question,  so  far  as  its 
provisions  require,  as  a  condition  of  sales  in  Minnesota  of  fresh 
beef,  veal,  mutton,  lamb  or  pork  for  human  food,  that  the  animals 
from  which  such  meats  are  taken  shall  have  been  inspected  in 
Minnesota  before  being  slaughtered,  is  in  violation  of  the  Consti- 
tution of  the  United  States  and  void. 

The  judgment  discharging  the  appellee  from  custody  is  affirmed, 

Note. — The  decisions  of  the  Supreme  Court  on  the  commerce 
clause  of  the  Constitution  have  differed  widely  from  time  to  time, 
and  there  is  now  a  tendency  to  return  to  the  principles  laid  down 
by  Chief  Justice  Marshall  in  Gibbons  v.  Ogden.  On  this  point 
!Mr.  Justice  Bradley  has  said,  "A  great  number  and  variety  of 
cases  involving  the  commercial  power  of  Congress  have  been 
brought  to  the  attention  of  this  court  during  the  past  fifteen 
years,  which  have  frequently  made  it  necessary  to  re-examine  the 
whole  subject  with  care;  and  the  result  has  sometimes  been  that 
in  order  to  give  full  and  fair  effect  to  the  different  clauses  of 
the  Constitution  the  court  has  felt  constrained  to  recur  to  the 
fundamental  principles  stated  and  illustrated  with  so  much  clear- 
ness and  force  by  Chief  Justice  Marshall  and  other  members  of 
the  court  in  former  times,  and  to  modify  to  some  degree  certain 
dicta  and  decisions  that  have  occasionally  been  made  in  the  inter- 
vening period."     Leloup  v.  Mobile,  127  U.  S.,  640,  648  (1888). 


f 


m 


S^s^Q^     7-^^  J^  v4^.  g^^  ^>"7 


V.    THE  POLICE  POWER. 


MUNN   V.    ILLINOIS. 
»4  U.   S..  118.    Decided  1876. 

Error  to  the  Supreme  Court  of  the  State  of  Illinois.     .     .     . 
[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  question  to  be  determined  in  this  case  is  whether  the  gen- 
eral assembly  of  Illinois  can,  under  the  limitations  upon  the  legis- 
lative powers  of  the  States  imposed  by  the  Constitution  of  the 
L'nited  States,  fix  by  law  the  maximum  of  charges  for  the  storage 
of  grain  in  warehouses  at  Chicago  and  other  places  in  the  State 
having  not  less  than  one  hundred  thousand  inhabitants,  "in  which 
grain  is  stored  in  bulk,  and  in  which  the  grain  of  different  owners 
is  mixed  together,  or  in  which  grain  is  stored  in  such  a  manner 
that  the  identity  of  different  lots  or  parcels  cannot  be  accurately 
preserved." 

It  is  claimed  that  such  a  law  is  repugnant — 

1.  To  that  part  of  sect.  8,  art.  1,  of  the  Constitution  of  the 
United  States  which  confers  upon  Congress  the  power  "to  regulate 
commerce  with  foreign  nations  and  among  the  several  States;" 

2.  To  that  part  of  sect.  9  of  the  same  article,  which  provides 
that  "no  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  State  over  those  of  another;"  and 

3.  To  that  part  of  amendment  14  which  ordains  that  no  State 
shall  "deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

We  will  consider  the  last  of  these  objections  first. 

Every  statute  is  presumed  to  be  constitutional.  The  courts 
ought  not  to  declare  one  to  be  unconstitutional,  unless  it  is  clearly 
so.  If  there  is  doubt,  the  expressed  will  of  the  legislature  should 
be  sustained. 

19  289 


290  CASES   ON  CONSTITUTIONAL   LAW. 

The  Constitution  contains  no  definition  of  the  word  "deprive," 
as  used  in  the  Fourteenth  Amendment.  To  determine  its  signifi- 
cation, therefore,  it  is  necessary  to  ascertain  the  effect  which 
usage  has  given  it,  when  employed  in  the  same  or  a  like  con- 
nection. 

While  this  provision  of  the  amendment  is  new  in  the  Constitu- 
tion of  the  United  States,  as  a  limitation  upon  the  powers  of  the 
States,  it  is  old  as  a  principle  of  civilized  government.  It  is 
found  in  Magna  Charta,  and,  in  substance  if  not  in  form,  in 
nearly  or  quite  all  the  constitutions  that  have  been  from  time  to 
time  adopted  by  the  several  States  of  the  Union.  By  the  Fifth 
Amendment,  it  was  introduced  into  the  Constitution  of  the  United 
States  as  a  limitation  upon  the  powers  of  the  national  government, 
and  by  the  Fourteenth,  as  a  guarantee  against  any  encroachments 
upon  an  acknowledged  right  of  citizenship  by  the  legislatures  of 
the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their 
government.  They  retained  for  the  purposes  of  government  all 
the  powers  of  the  British  Parliament,  and  through  their  State 
constitutions,  or  other  forms  of  social  compact,  undertook  to  give 
practical  effect  to  such  as  they  deemed  necessary  for  the  common 
good  and  the  security  of  life  and  property.  All  the  powers  which 
they  retained  they  committed  to  their  respective  States,  unless  in 
express  terms  or  by  implication  reserved  to  themselves.  Subse- 
quently, when  it  was  found  necessar}"^  to  establish  a  national  gov- 
ernment for  national  purposes,  a  part  of  the  powers  of  the  States 
and  of  the  people  of  the  States  was  granted  tO'  the  United  States 
and  the  people  of  the  United  States.  This  grant  operated  as  a 
further  limitation  upon  the  powers  of  the  States  so  that  now  the 
governments  of  the  States  pos^ss  all  the  powers  of  the  Parlia- 
ment of  England,  except  such  as  have  been  delegated  to  the 
United  States  or  reserved  by  the  people.  The  reservations  by 
the  people  are  shown  in  the  prohibitions  of  the  constitutions. 

When  one  becomes  a  member  of  society,  he  necessarily  parts 
with  some  rights  or  privileges  which,  as  an  individual  not  affected 
by  his  relations  to  others,  he  might  retain.  "A  body  politic,"  as 
aptly  defined  in  the  preamble  of  the  Constitution  of  Massachusetts, 
"is  a  social  compact  by  which  the  whole  people  covenants  with 
each  citizen,  each  citizen  with  the  whole  people,  that  all  shall 
be  governed  by  certain  laws  for  the  common  good."  This  does 
not  confer  power  upon  the  whole  people  to  control  rights  which 
are  purely  and  exclusively  private  (Thorpe  v.  R.  &  V.  Railroad  Co., 


i 


MUNN  V.  ILLINOIS.  291 

27  Vt.,  143);  but  it  does  authorize  the  establishment  of  laws 
requiring  each  citizen  to  so  conduct  himself,  and  so  use  his  own 
property,  as  not  unnecessarily  to  injure  another.  This  is  the  very 
essence  of  government,  and  has  found  expression  in  the  maxim, 
sic  utere  tuo  tit  alienufn  non  laedas.  From  this  source  come  the 
police  powers,  which,  as  was  said  by  Mr.  Chief  Justice  Taney  in 
the  License  Cases,  5  How.,  583,  "are  nothing  more  or  less  than 
the  powers  of  government  inherent  in  every  sovereignty,  .  .  . 
that  is  to  say,  .  .  .  the  power  to  govern  men  and  things." 
Under  these  powers  the  government  regulates  the  conduct  of  its 
citizens  one  towards  another,  and  the  manner  in  which  each  shall 
use  his  own  property,  when  such  regulation  becomes  necessary  for 
the  public  good.  In  their  exercise  it  has  been  customary  in  Eng- 
land from  time  immemorial,  and  in  this  country  from  its  first 
colonization,  to  regulate  ferries,  common  carriers,  hackmen, 
bakers,  millers,  wharfingers,  innkeepers,  &c.,  and  in  so  doing 
to  fix  a  maximum  of  charge  to  be  made  for  services  rendered,  ac- 
commodations furnished,  and  articles  sold.  To  this  day,  statutes 
are  to  be  found  in  many  of  the  States  upon  some  or  all  these 
subjects;  and  we  think  it  has  never  yet  been  successfully  con- 
tended that  such  legislation  came  within  any  of  the  constitutional 
prohibitions  against  interference  with  private  property.  With  the 
Fifth  Amendment  in  force.  Congress,  in  1820,  conferred  power 
upon  the  city  of  Washington  "to  regulate  .  .  .  the  rates  of 
wharfage  at  private  wharves,  .  .  .  the  sweeping  of  chimneys, 
and  to  fix  the  rates  of  fees  therefor,  .  .  .  and  the  weight  and 
quality  of  bread,"  3  Stat.,  587,  sec.  7;  and,  in  1848,  "to  make 
all  necessary  regulations  respecting  hackney  carriages  and  the 
rates  of  fare  of  the  same,  and  the  rates  of  hauling  by  c&rtmen, 
wagoners,  carmen,  and  draymen,  and  the  rates  of  commission  of 
auctioneers,"  9  id.,  224,  sect.  2. 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adop- 
tion of  the  Fourteenth  Amendment,  it  was  not  supposed  that 
statutes  regulating  the  use,  or  even  the  price  of  the  use,  of  private 
property  necessarily  deprived  an  owner  of  his  property  without 
due  process  of  law.  Under  some  circumstances  they  may,  but  not 
under  all.  The  amendment  does  not  change  the  law  in  this  par- 
ticular: it  simply  prevents  the  States  from  doing  that  which  will 
operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this 
power  of  regulation  rests,  in  order  that  we  may  determine  what 
is  Avithin  and  what  without  its  operative  effect.  Looking,  then, 
to  the  common  law,  from  whence  came  the  right  which  the  Con- 


k 


292  CASES   ON  CONSTITUTIONAL   LAW. 

stitution  protects,  we  find  that  when  private  property  is  "affected 
with  a  public  interest,  it  ceases  to  be  juris  privati  only."  This 
was  said  by  Lord  Chief  Justice  Hale  more  than  two  hundred  years 
ago,  in  his  treatise  De  Portibus  Maris,  1  Harg.  Law  Tracts,  78, 
and  has  been  accepted  without  objection  as  an  essential  element 
in  the  law  of  property  ever  since.  Property  does  become  clothed 
with  a  public  interest  when  used  in  a  manner  to  make  it  of  public 
consequence,  and  affect  the  community  at  large.  When,  therefore, 
one  devotes  his  property  to  a  use  in  which  the  public  has  an 
interest,  he,  in  effect,  grants  to  the  public  an  interest  in  that 
use,  and  must  submit  to  be  controlled  by  the  public  for  the  com- 
mon good,  to  the  extent  of  the  interest  he  has  thus  created.  He 
may  withdraw  his  grant  by  discontinuing  the  use;  but,  so  long 
as  he  maintains  the  use,  he  must  submit  to  the  control. 

Thus,  as  to  ferries.  Lord  Hale  says,  in  his  treatise  De  Jure 
Maris,  1  Harg.  Law  Tracts,  6,  the  king  has  "a  right  of  fran- 
chise or  privilege,  that  no  man  may  set  up  a  common  ferry  for  all 
passengers,  without  a  prescription  time  out  of  mind  or  a  charter 
from  the  king.  He  may  make  a  ferry  for  his  own  use  or  the  use 
of  his  family,  but  not  for  the  common  use  of  all  the  king's  sub- 
jects passing  that  way;  because  it  doth  in  consequence  tend  to 
a  common  charge,  and  is  become  a  thing  of  public  interest  and 
use,  and  every  man  for  his  passage  pays  a  toll,  which  is  a  common 
charge,  and  every  ferry  ought  to  be  under  a  public  regulation, 
viz.,  that  it  give  attendance  at  due  times,  keep  a  boat  in  due  order 
and  take  but  reasonable  toll;  for  if  he  fail  in  these  he  is  finable." 
So  if  one  owns  the  soil  and  landing-places  on  both  banks  of  a 
stream,  he  cannot  use  them  for  the  purposes  of  a  public  ferry,  ex- 
cept upon  such  terms  and  conditions  as  the  body  politic  may 
from  time  to  time  impose;  and  this  because  the  common  good 
requires  that  all  public  ways  shall  be  under  the  control  of  the 
public  authorities.  This  privilege  or  prerogative  of  the  king,  who 
in  this  connection  only  represents  and  gives  another  name  to  the 
body  politic,  is  not  primarily  for  his  profit,  but  for  the  protection 
of  the  people  and  the  promotion  of  the  general  welfare.     .     .     . 

[Here  follows  another  passage  from  Lord  Hale  regarding 
wharves.] 

This  statement  of  the  law  by  Lord  Hale  was  cited  with  appro- 
bation and  acted  upon  by  Lord  Kenyon  at  the  beginning  of  the 
present  century,  in  Bolt  v.  Stennett,  8  T.  K.,  606. 

And  the  same  has  been  held  as  to  warehouses  and  warehouse- 
men.     In  Aldnutt  v.  Inglis,  12  East,  527,  decided  in  1810,  it 


MIJNN  V.  ILLINOIS.  293 

appeared  that  the  London  Dock  Company  had  built  warehouses 
in  which  wines  were  taken  in  store  at  such  rates  of  charge  as  the 
company  and  the  owners  might  agree  upon.  Afterwards  the 
company  obtained  authority,  under  the  general  warehousing  act, 
to  receive  wines  from  importers  before  the  duties  upon  the  im- 
portation were  paid;  and  the  question  was,  whether  they  could 
charge  arbitrary  rates  for  such  storage,  or  must  be  content  with 
a  reasonable  compensation.  .  .  .  [Here  follow  several  pas- 
sages from  the  opinions  in  this  case,  in  which  it  was  held  that 
the  charges  must  be  reasonable.] 

In  later  times,  the  same  principle  came  under  consideration  in 
the  Supreme  Court  of  Alabama.  That  court  was  called  upon,  in 
1841,  to  decide  whether  the  power  granted  to  the  city  of  Mobile 
to  regulate  the  weight  and  price  of  bread  was  unconstitutional, 
and  it  was  contended  that  "it  would  interfere  with  the  right  of 
the  citizen  to  pursue  his  lawful  trade  or  calling  in  the  mode  his 
judgment  might  dictate;"  but  the  court  said,  "there  is  no  motive 
.  .  .  for  this  interference  on  the  part  of  the  legislature  with 
the  lawful  actions  of  individuals,  or  the  mode  in  which  private 
property  shall  be  enjoyed,  unless  such  calling  aifects  the  public  in- 
terest, or  private  property  is  employed  in  a  manner  which  directly 
affects  the  body  of  the  people.  Upon  this  principle,  in  this  State, 
tavern-keepers  are  licensed;  .  .  .  and  the  County  Court  is  re- 
quired, at  least  once  a  year,  to  settle  the  rates  of  innkeepers.  Upon 
the  same  principle  is  founded  the  control  which  the  legislature  has 
always  exercised  in  the  establishment  and  regulation  of  mills,  fer- 
ries, bridges,  turnpike  roads,  and  other  kindred  subjects."  Mobile 
V.  Yuille,  3  Ala.,  n.  s.,  140. 

From  the  same  source  comes  the  power  to  regulate  the  charges 
of  common  carriers,  which  was  done  in  England  as  long  ago 
as  the  third  year  of  the  reign  of  William  and  Mary,  and  con- 
tinued until  within  a  comparatively  recent  period.  And  in  the  first 
statute  we  find  the  following  suggestive  preamble,  to  wit: — 

"And  whereas  divers  wagoners  and  other  carriers,  by  com- 
bination amongst  themselves,  have  raised  the  prices  of  carriage 
of  goods  in  many  places  to  excessive  rates,  to  the  great  injury 
of  the  trade:  Be  it,  therefore,  enacted,"  &c.  3  W.  &  M.,  c.  12, 
§  24;    3  Stat,  at  Large  (Great  Britain),  481. 

Common  carriers  exercise  a  sort  of  public  office,  and  have  duties 
to  perform  in  which  the  public  is  interested.  New  Jersey  Nav. 
Co.  V.  Merchants'  Bank,  6  How.,  382.  Their  business  is,  there- 
fore, "affected  with  a  public  interest,"  within  the  meaning  of 
the  doctrine  which  Lord  Hale  has  so  forcibly  stated. 


294  CASES   ON  CONSTITUTIONAL  LAW. 

But  we  need  not  go  further.  Enough  has  already  been  said  to 
show  that,  when  private  property  is  devoted  to  a  public  use,  it  is 
subject  to  public  regulation.  It  remains  only  to  ascertain  whether 
the  warehouses  of  these  plaintiffs  in  error,  and  the  business  which 
is  carried  on  there,  come  within  the  operation  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  con- 
tained in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs 
in  error.  From  these  it  appears  that  "the  great  producing  region 
of  the  West  and  North-west  sends  its  grain  by  water  and  rail  to 
Chicago,  where  the  greater  part  of  it  is  shipped  by  vessel  for 
transportation  to  the  seaboard  by  the  Great  Lakes,  and  some  of  it 
is  forwarded  by  railway  to  the  Eastern  ports.  .  .  .  Vessels, 
to  some  extent,  are  loaded  in  the  Chicago  harbor,  and  sailed 
through  the  St.  Lawrence  directly  to  Europe.  .  .  .  The  quan- 
tity [of  grain]  received  in  Chicago  has  made  it  the  greatest  grain 
market  in  the  world.  This  business  has  created  a  demand  for 
means  by  which  the  immense  quantity  of  grain  can  be  handled  or 
stored,  and  these  have  been  found  in  grain  warehouses,  which  are 
commonly  called  elevators,  because  the  grain  is  elevated  from  the 
boat  or  car,  by  machinery  operated  by  steam,  into  the  bins  pre- 
pared for  its  reception,  and  elevated  from  the  bins,  by  a  like 
process,  into  the  vessel  or  car  which  is  to  carry  it  on.  ...  In 
this  way  the  largest  traffic  between  the  citizens  of  the  country 
north  and  west  of  Chicago  and  the  citizens  of  the  country  lying 
on  the  Atlantic  coast  north  of  Washington  is  in  grain  which 
passes  through  the  elevators  of  Chicago.  In  this  way  the  trade 
in  grain  is  carried  on  by  the  inhabitants  of  seven  or  eight  of  the 
great  States  of  the  West  with  four  or  five  of  the  States  lying  on  the 
sea-shore,  and  forms  the  largest  part  of  interstate  commerce  in 
these  States.  The  grain  warehouses  or  elevators  in  Chicago  are 
immense  structures,  holding  from  300,000  to  1,000,000  bushels 
at  one  time,  according  to  size.  They  are  divided  into  bins  of  large 
capacity  and  great  strength.  .  .  .  They  are  located  with  the 
river  harbor  on  one  side  and  the  railway  tracks  on  the  other;  and 
the  grain  is  run  through  them  from  car  to  vessel,  or  boat  to  car, 
as  may  be  demanded  in  the  course  of  business.  It  has  been  found 
impossible  to  preserve  each  owner's  grain  separate,  and  this  has 
given  rise  to  a  system  of  inspection  and  grading,  by  which  the 
grain  of  different  owners  is  mixed,  and  receipts  issued  for  the 
number  of  bushels,  which  are  negotiable,  and  redeemable  in  like 
kind,  upon  demand.  This  mode  of  conducting  the  business  was 
inaugurated  more  than  twenty  years  ago,  and  has  grown  to  im- 
mense proportions     The  railways  have  found  it  impracticable  to 


MUNN  V.  ILLINOIS.  ^95 

own  such  elevators,  and  public  policy  forbids  the  transaction  of 
such  business  by  the  carrier;  the  ownership  has,  therefore,  been 
by  private  individuals,  who  have  embarked  their  capital  and  de- 
voted their  industry  to  such  business  as  a  private  pursuit." 

In  this  connection  it  must  also  be  borne  in  mind  that,  although 
in  1874  there  were  in  Chicago  fourteen  warehouses  adapted  to 
this  particular  business,  and  owned  by  about  thirty  persons,  nine 
business  firms  controlled  them,  and  that  the  prices  charged  and 
received  for  storage  were  such  "as  have  been  from  year  to  year 
agreed  upon  and  es.tablished  by  the  different  elevators  or  ware- 
houses in  the  city  of  Chicago,  and  which  rates  have  been  annually 
published  in  one  or  more  newspapers  printed  in  said  city,  in  the 
month  of  January  in  each  year,  as  the  established  rates  for  the 
year  then  next  ensuing  such  publication."  Thus  it  is  apparent 
that  all  the  elevating  facilities  through  which  these  vast  produc- 
tions "of  seven  or  eight  great  States  of  the  West"  must  pass  on 
the  way  "to  four  or  five  of  the  States  on  the  sea-shore"  may  be 
a  "virtual"  monopoly. 

Under  such  circumstances  it  is  dijfficult  to  see  why,  if  the  com- 
mon carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or 
the  wharfinger,  or  the  baker,  or  the  cartman,  or  the  hackney- 
coachman,  pursues  a  public  employment  and  exercises  "a  sort  of 
public  office,"  these  plaintiffs  in  error  do  not.  They  stand,  to  use 
again  the  language  of  their  counsel,  in  the  very  "gateway  of  com- 
merce," and  take  toll  from  all  who  pass.  Their  business  most 
certainly  "tends  to  a  common  charge,  and  is  become  a  thing  of 
public  interest  and  use."  Every  bushel  of  grain  for  its  passage 
*'pays  a  toll,  which  is  a  common  charge,"  and  therefore,  according 
to  Lord  Hale,  every  such  warehouseman  "ought  to  be  under 
public  regulation,  viz.,  that  he  .  .  .  take  but  reasonable  toll." 
Certainly,  if  any  business  can  be  clothed  "with  a  public  interest 
and  cease  to  be  juris  privati  only,"  this  has  been.  It  may  not 
be  made  so  by  the  operation  of  the  Constitution  of  Illinois  or 
this  statute,  but  it  is  by  the  facts. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some 
reason,  the  people  of  Illinois,  when  they  revised  their  Constitu- 
tion in  1870,  saw  fit  to  make  it  the  duty  of  the  general  assembly 
to  pass  laws  "for  the  protection  of  producers,  shippers,  and  re- 
ceivers of  grain  and  produce,"  art.  13,  sect.  7;  and  by  sect.  5  of 
the  same  article,  to  require  all  railroad  companies  receiving  and 
transporting  grain  in  bulk  or  otherwise  to  deliver  the  same  at  any 
elevator  to  which  it  might  be  consigned,  that  could  be  reached 
by  any  track  that  was  or  could  be  used  by  such  company,  and  that 


296  CASES  ON  CONSTITUTIONAL  LAW. 

all  railroad  companies  should  permit  connections  to  be  made  with 
their  tracks,  so  that  any  public  warehouse,  &c.,  might  be  reached 
by  the  ears  on  their  railroads.  This  indicates  very  clearly  that 
during  the  twenty  years  in  which  this  peculiar  business  had  been 
assuming  its  present  "immense  proportions,"  something  had  oc- 
curred which  led  the  whole  body  of  the  people  to  suppose  that 
remedies  such  as  are  usually  employed  to  prevent  abuses  by  virtual 
monopolies  might  not  be  inappropriate  here.  For  our  purposes 
we  must  assume  that,  if  a  state  of  facts  could  exist  that  would 
justify  such  legislation,  it  actually  did  exist  when  the  statute 
now  under  consideration  was  passed.  For  us  the  question  is 
one  of  power,  not  of  expediency.  If  no  state  of  circumstances 
could  exist  to  justify  such  a  statute,  then  we  may  declare  this 
one  void,  because  in  excess  of  the  legislative  power  of  the  State. 
But  if  it  could,  we  must  presume  it  did.  Of  the  propriety  of 
legislative  interference  within  the  scope  of  legislative  power,  the 
legislature  is  the  exclusive  judge. 

Neither  is  it  a  matter  of  any  moment  that  no  precedent  can 
be  found  for  a  statute  precisely  like  this.  It  is  conceded  that  the 
business  is  one  of  recent  origin,  that  its  growth  has  been  rapid, 
and  that  it  is  already  of  great  importance.  And  it  must  also  be 
conceded  that  it  is  a  business  in  which  the  whole  public  has  a 
direct  and  positive  interest.  It  presents,  therefore,  a  case  for  the 
application  of  a  long-known  and  well-established  principle  in  social 
science,  and  this  statute  simply  extends  the  law  so  &s  to  meet 
this  new  development  of  commercial  progress.  There  is  no  at- 
tempt to  compel  these  owners  to  grant  the  public  an  interest  in 
their  property,  but  to  declare  their  obligations,  if  they  use  it 
in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had 
built  their  warehouses  and  established  their  business  before  the 
regulations  complained  of  were  adopted.  What  they  did  was  from 
the  beginning  subject  to  the  power  of  the  body  politic  to  require 
them  to  conform  to  such  regulations  as  might  be  established  by  the 
proper  authorities  for  the  common  good.  They  entered  upon 
their  business  and  provided  themselves  with  the  means  to  carry 
it  on  subject  to  this  condition.  If  they  did  not  wish  to  submit 
themselves  to  such  interference,  they  should  not  have  clothed  the 
public  with  an  interest  in  their  concerns.  The  same  principle 
applies  to  them  that  does  to  the  proprietor  of  a  hackney-carriage, 
and  as  to  him  it  has  never  been  supposed  that  he  was  exempt 
from  regulating  statutes  or  ordinances  because  he  had  purchased 


MUNN  V.  ILLINOIS.  297 

his  horses  and  carriage  and  established  his  business  before  the 
statute  or  the  ordinance  was  adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled 
to  a  reasonable  compensation  for  its  use,  even  though  it  be  clothed] 
with  a  public  interest,  and  that  what  is  reasonable  is  a  judicial 
and  not  a  legislative  question. 

As  has  already  been  shown,  the  practice  has  been  otherwise. 
In  countries  where  the  common  law  prevails,  it  has  been  custom- 
ary from  time  immemorial  for  the  legislature  to  declare  what  shall 
be  a  reasonable  compensation  under  such  circumstances,  or,  per- 
haps more  properly  speaking,  to  fix  a  maximum  beyond  which  any 
charge  made  would  be  unreasonable.  Undoubtedly,  in  mere  pri- 
vate contracts,  relating  ^to  matters  in  which  the  public  has  no 
interest,  what  is  reasonable  must  be  ascertained  judicially.  But 
this  is  because  the  legislature  has  no  control  over  such  a  contract. 
So,  too,  in  matters  which  do  affect  the  public  interest,  and  as  to 
which  legislative  control  may  be  exercised,  if  there  are  no  statu- 
tory regulations  upon  the  subject,  the  courts  must  determine  what 
is  reasonable.  The  controlling  fact  is  the  power  to  regulate  at  all. 
If  that  exists,  the  right  to  establish  the  maximum  of  charge,  as 
one  of  the  means  of  regulation,  is  implied.  In  fact,  the  common- 
law  rule,  which  requires  the  charge  to  be  reasonable,  is  itself 
a  regulation  as  to  price.  Without  it  the  owner  could  make  his 
rates  at  will,  and  compel  the  public  to  yield  to  his  terms,  or  forego 
the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  may  be 
changed  by  statute.  A  person  has  no  property,  no  vested  interest, 
in  any  rule  of  the  common  law.  That  is  only  one  of  the  forms 
of  municipal  law,  and  is  no  more  sacred  than  any  other.  Rights 
of  property  which  have  been  created  by  the  common  law  cannot 
be  taken  away  without  due  process;  but  the  law  itself,  as  a  rul< 
of  conduct,  may  be  changed  at  the  will,  or  even  at  the  whim 
of  the  legislature,  unless  prevented  by  constitutional  limitations. 
Indeed,  the  great  office  of  statutes  is  to  remedy  defects  in  the 
common  law  as  they  are  developed,  and  to  adapt  it  to  the  changes 
of  time  and  circumstance.  To  limit  the  rate  of  charge  for  services 
rendered  in  a  public  employment,  or  for  the  use  of  property  in 
which  the  public  has  an  interest,  is  only  changing  a  regulation 
which  existed  before.  It  establishes  no  new  principle  in  the  law, 
but  only  gives  a  new  effect  to  an  old  one. 

We  know  that  this  is  a  power  which  may  be  abused;  but  that  is 
no  argument  against  its  existence.    For  protection  against  abuses 


298  CASES  ON  CONSTITUTIONAL  LAW. 

by  legislatures  the  people  must  resort  to  the  polls,  not  to  the 
courts. 

After  what  has  already  been  said,  it  is  unnecessary  to  refer  at 
length  to  the  effect  of  the  other  provision  of  the  Fourteenth 
Amendment  which  is  relied  upon,  viz.,  that  no  State  shall  "deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws."  Certainly,  it  cannot  be  claimed  that  this  prevents  the 
State  from  regulating  the  fares  of  hackmen  or  the  charges  of 
draymen  in  Chicago,  unless  it  does  the  same  thing  in  every  other 
place  within  its  jurisdiction.  But,  as  has  been  seen,  the  power 
to  regulate  the  business  of  warehouses  depends  upon  the  same 
principle  as  the  power  to  regulate  hackmen  and  draymen,  and 
what  cannot  be  done  in  the  one  case  in  this  particular  cannot  be 
done  in  the  other. 

We  come  now  to  consider  the  effect  upon  this  statute  of  the 
power  of  Congress  to  regulate  commerce. 

It  was  very  properly  said  in  the  case  of  the  State  Tax  on  Eail- 
way  Gross  Receipts,  15  Wall.,  293,  that  "it  is  not  everything  that 
affects  commerce  that  amounts  to  a  regulation  of  it,  within  the 
meaning  of  the  Constitution."  The  warehouses  of  these  plaintiffs 
in  error  are  situated  and  their  business  carried  on  exclusively 
within  the  limits  of  the  State  of  Illinois.  They  are  used  as  instru- 
ments by  those  engaged  in  State  as  well  as  those  engaged  in  inter- 
state commerce,  but  they  are  no  more  necessarily  a  part  of  com- 
merce itself  than  the  dray  or  the  cart  by  which,  but  for  them, 
grain  would  be  transferred  from  one  railroad  station  to  another. 
Incidentally  they  may  become  connected  with  interstate  com- 
merce, but  not  necessarily  so.  Their  regulation  is  a  thing  of 
domestic  concern,  and,  certainly,  until  Congress  acts  in  reference 
to  their  interstate  relations,  the  State  may  exercise  all  the  powers 
of  government  over  them,  even  though  in  so  doing  it  may  indi- 
rectly operate  upon  commerce  outside  its  immediate  jurisdiction. 
We  do  not  say  that  a  case  may  not  arise  in  which  it  will  be  found 
that  a  State,  under  the  form  of  regulating  its  own  affairs,  has 
encroached  upon  the  exclusive  domain  of  Congress,  in  respect  to 
interstate  commerce,  but  we  do  say  that,  upon  the  facts  as  they 
are  represented  to  us  in  this  record,  that  has  not  been  done. 

The  remaining  objection,  to  wit,  that  the  statute  in  its  present 
form  is  repugnant  to  sect.  9,  art.  1,  of  the  Constitution  of  the 
United  States,  because  it  gives  preference  to  the  ports  of  one 
State  over  those  of  another,  may  be  disposed  of  by  the  single 
remark  that  this  provision  operates  only  as  a  limitation  of  the 


ESCANABA  COMPANY  v.  CHICAGO.  299 

powers  of  Congress,  and  in  no  respect  affects  the  States  in  the 
regulation  of  their  domestic  affairs. 

We  conclude,  therefore,  that  the  statute  in  question  is  not  re- 
pugnant to  the  Constitution  of  the  United  States,  and  that  there 
is  no  error  in  the  judgment.  In  passing  upon  this  case  we  have 
not  been  unmindful  of  the  vast  importance  of  the  questions  in- 
volved. This  and  cases  of  a  kindred  character  were  argued  before 
us  more  than*a  year  ago  by  most  eminent  counsel,  and  in  a  manner 
worthy  of  their  well-earned  reputations.  We  have  kept  the 
cases  long  under  advisement,  in  order  that  their  decision  might 
be  the  result  of  our  mature  deliberations. 

Judgment  affirmed. 

[Mk.  Justice  Field  rendered  a  dissenting  opinion,  in  which 
Me.  Justice  Stkong  concurred.] 


ESCANABA  COMPANY  v.  CHICAGO. 

107  U.  S.,  678.    Decided  1882. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Illinois. 

The  case  is  fully  stated  in  the  opinion  of  the  court.     .     .     . 

Mk.  Justice  Field  delivered  the  opinion  of  the  court. 

The  Escanaba  and  Lake  Michigan  Transportation  Company,  a 
corporation  created  under  the  laws  of  Michigan,  is  the  owner  of 
three  steam-vessels  engaged  in  the  carrying  trade  between  ports 
and  places  in  different  states  on  Lake  Michigan  and  the  navigable 
waters  connecting  with  it.  The  vessels  are  enrolled  and  licensed 
for  the  coasting  trade,  and  are  principally  employed  in  carrying 
iron  ore  from  the  port  of  Escanaba,  in  Michigan,  to  the  docks, 
of  the  Union  Iron  and  Steel  Company  on  the  south  fork  of  the 
south  branch  of  the  Chicago  Eiver  in  the  city  of  Chicago.  In 
their  course  up  the  river  and  its  south  branch  and  fork  to  the 
docks  they  are  required  to  pass  through  draws  of  several  bridges 
constructed  over  the  stream  by  the  city  of  Chicago;  and  it  is  of 
obstructions  caused  by  the  closing  of  the  draws,  under  an  ordi- 
nance of  the  city,  for  a  designated  hour  of  the  morning  and 
evening  during  week-days,  and  by  a  limitation  of  the  time  to  ten 
minutes,  during  which  a  draw  may  be  left  open  for  the  passage  of 
a  vessel,  and  by  some  of  the  piers  in  the  south  branch  and  fork, 
and  the  bridges  resting  on  them,  that  the  corporation  complains, 
and  to  enjoin  the  city  from  closing  the  draws  for  the  morning: 


300  CASES  ON  CONSTITUTIONAL  LAW. 

and  evening  hours  designated,  and  enforcing  the  ten  minutes' 
limitation,  and  to  compel  the  removal  of  the  objectionable  piers 
and  bridges,  the  present  bill  is  filed. 

The  river  and  its  branches  are  entirely  within  the  State  of  Illi- 
nois, and  all  of  it,  and  nearly  all  of  both  branches  that  is  naviga- 
ble, are  within  the  limits  of  the  city  of  Chicago.  The  river,  from 
the  junction  of  its  two  branches  to  the  lake,  is  about  three-fourths 
of  a  mile  in  length.  The  branches  flow  in  opposue  directions 
and  meet  at  its  head,  nearly  at  right  angles  with  it.  Originally 
the  width  of  the  river  and  its  branches  seldom  exceeded  one  hun- 
dred and  fifty  feet;  of  the  branches  and  fork  it  was  often  less 
than  one  hundred  feet;  but  it  has  been  greatly  enlarged  by  the 
city  for  the  convenience  of  its  commerce. 

The  city  fronts  on  Lake  Michigan,  and  the  mouth  of  the  Chi- 
cago River  is  near  its  center.  The  river  and  its  branches  divide 
the  city  into  three  sections;  one  lying  north  of  the  main  river 
and  east  of  its  north  branch,  which  may  be  called  its  northern 
division;  one  lying  between  the  north  and  south  branches,  which 
may  be  called  its  western  division;  and  one  lying  south  of  the 
main  river  and  east  of  the  south  branch,  which  may  be  called 
its  southern  division.  Along  the  river  and  its  branches  the  city 
has  grown  up  into  magnificent  proportions,  having  a  population 
of  six  hundred  thousand  souls.  Running  back  from  them  on  both 
sides  are  avenues  and  streets  lined  with  blocks  of  edifices,  public 
and  private,  with  stores  and  warehouses,  and  the  immense  variety 
of  buildings  suited  for  the  residence  and  the  business  of  this 
vast  population.  These  avenues  and  streets  are  connected  by  a 
great  number  of  bridges,  over  which  there  is  a  constant  passage 
of  foot-passengers  and  of  vehicles  of  all  kinds.  A  slight  impedi- 
ment to  the  movement  causes  the  stoppage  of  a  crowd  of  passen- 
gers and  a  long  line  of  vehicles. 

The  main  business  of  the  city,  where  the  principal  stores,  ware- 
houses, offices,  and  public  buildings  are  situated,  is  in  the  southern 
division  of  the  city;   and  a  large  number  of  the  persons  who  do  , 
business  there  reside  in  the  northern  or  the  western  division,  or 
in  the  suburbs. 

While  this  is  the  condition  of  business  in  the  city  on  the  land, 
the  river  and  its  branches  are  crowded  with  vessels  of  all  kinds; 
sailing  craft  and  steamers,  boats,  barges,  and  tugs,  moving  back- 
wards and  forwards,  and  loading  and  unloading.  Along  the  banks 
there  are  docks,  warehouses,  elevators,  and  all  the  appliances  for 
shipping  and  reshipping  goods.  To  these  vessels  the  unrestricted 
navigation  of  the  river  and  its  branches  is  of  the  utmost  impor- 


BSCANABA  COMPANY  v.  CHICAGO.  301 

tance;  while  to  those  who  are  compelled  to  cross  the  river  and  its 
branches  the  bridges  are  a  necessity.  The  object  of  wise  legisla- 
tion is  to  give  facilities  to  both,  with  the  least  obstruction  to 
either.    This  the  city  of  Chicago  has  endeavored  to  do. 

The  State  of  Illinois,  within  which,  as  already  mentioned,  the 
river  and  its  branches  lie,  has  vested  in  the  authorities  of  the  city 
jurisdiction  over  bridges  within  its  limits,  their  construction,  re- 
pair, and  use,  and  empowered  them  to  deepen,  widen,  and  change 
the  channel  of  the  stream,  and  to  make  regulations  in  regard  to 
the  times  at  which  the  bridges  shall  be  kept  open  for  the  passage 
of  vessels. 

Acting  upon  the  power  thus  conferred,  the  authorities  have 
endeavored  to  meet  the  wants  of  commerce  with  other  States,  and 
the  necessities  of  the  population  of  the  city  residing  or  doing 
business  in  different  sections.  For  this  purpose  they  have  pre- 
scribed as  follows:  that  "Between  the  hours  of  six  and  seven 
o'clock  in  the  morning,  and  half-past  five  and  half-past  six  o'clock 
in  the  evenings,  Sundays  excepted,  it  shall  be  unlawful  to  open 
any  bridge  within  the  city  of  Chicago;"  and  that  "During  the 
hours  between  seven  o'clock  in  the  morning  and  half-past  five 
o'clock  in  the  evening,  it  shall  be  unlawful  to  keep  open  any 
bridge  within  the  city  of  Chicago  for  the  purpose  of  permitting 
vessels  or  other  crafts  to  pass  through  the  same,  for  a  longer 
period  at  any  one  time  than  ten  minutes,  at  the  expiration  of 
which  period  it  shall  be  the  duty  of  the  bridge-tender  or  other 
person  in  charge  of  the  bridge  to  display  the  proper  signal,  and 
immediately  close  the  same,  and  keep  it  closed  for  fully  ten  min- 
utes for  such  persons,  teams,  or  vehicles  as  may  be  waiting  to  pass 
over,  if  so  much  time  shall  be  required;  when  the  said  bridge 
shall  again  be  opened  (if  necessary  for  vessels  to  pass)  for  a  like 
period,  and  so  on  alternately  (if  necessary)  during  the  hours  last 
aforesaid;  and  in  every  instance  where  any  such  bridge  shall  be 
open  for  the  passage  of  any  vessel,  vessels,  or  other  craft,  and 
closed  before  the  expiration  of  ten  minutes  from  the  time  of  open- 
ing, said  bridge  shall  then,  in  every  such  case,  remain  closed  for 
fully  ten  minutes,  if  necessary,  in  order  to  allow  all  persons,  teams, 
and  vehicles  in  waiting  to  pass  over  said  bridge." 

The  first  of  these  requirements  was  called  for  to  accommodate 
clerks,  apprentices,  and  laboring  men  seeking  to  cross  the  bridges, 
at  the  hours  named,  in  going  to  and  returning  from  their  places  of 
labor.  Any  unusual  delay  in  the  morning  would  derange  their 
business  for  the  day,  and  subject  them  to  a  corresponding  loss  of 
wages.    At  the  hours  specified  there  is  three  times — so  the  record 


302  CASES  ON  CONSTITUTIONAL  LAW. 

shows — the  usual  number  of  pedestrians  going  and  returning  that 
there  is  during  other  hours. 

The  limitation  of  ten  minutes  for  the  passage  of  the  draws  by 
vessels  seems  to  have  been  eminently  wise  and  proper  for  the  pro- 
tection of  the  interests  of  all  parties.  Ten  minutes  is  ample  time 
for  any  vessel  to  pass  the  draw  of  a  bridge,  and  the  allowance  of 
more  time  would  subject  foot-passengers,  teams,  and  other  vehicles 
to  great  inconvenience  and  delays. 

The  complainant  principally  objects  to  this  ten  minutes'  lim- 
itation, and  to  the  assignment  of  the  morning  and  evening  hour 
to  pedestrians  and  vehicles.  It  insists  that  the  navigation  of  the 
river  and  its  branches  should  not  be  thus  delayed;  and  that  the 
rights  of  commerce  by  vessels  are  paramount  to  the  rights  of  com- 
merce by  any  other  way. 

But  in  this  view  the  complainant  is  in  error.  The  rights  of 
each  class  are  to  be  enjoyed  without  invasion  of  the  equal  rights 
of  others.  Some  concession  must  be  made  on  every  side  for  the 
convenience  and  the  harmonious  pursuit  of  different  occupations. 
Independently  of  any  constitutional  restrictions,  nothing  would 
seem  more  just  and  reasonable,  or  better  designed  to  meet  the 
wants  of  the  population  of  an  immense  city,  consistently  with  the 
interests  of  commerce  than  the  ten  minutes  rule  and  the 
assignment  of  the  morning  and  evening  hours  which  the  city  ordi- 
nance has  prescribed. 

The  power  vested  in  the  general  government  to  regulate  inter- 
state and  foreign  commerce  involves  the  control  of  the  waters 
of  the  United  States  which  are  navigable  in  fact,  so  far  as  it  may 
be  necessary  to  insure  their  free  navigation,  when  by  themselves 
or  their  connection  with  other  waters  they  form  a  continuous 
channel  for  commerce  among  the  States  or  with  foreign  coun- 
tries. The  Daniel  Ball,  10  Wall.,  557.  Such  is  the  case  with  the 
Chicago  Kiver  and  its  branches.  The  common-law  test  of  the 
navigability  of  waters,  that  they  are  subject  to  the  ebb  and  flow 
of  the  tide,  grew  out  of  the  fact  that  in  England  there  are  no 
waters  navigable  in  fact,  or  to  any  great  extent,  which  are  not 
also  affected  by  the  tide.  That  test  has  long  since  been  discarded 
in  this  country.  Vessels  larger  than  any  which  existed  in  Eng- 
land, when  that  test  was  established,  now  navigate  rivers  and 
inland  lakes  for  more  than  a  thousand  miles  beyond  the  reach 
of  any  tide.  That  test  only  becomes  important  when  considering 
the  rights  of  riparian  owners  to  the  bed  of  the  stream,  as  in 
some  States  it  governs  in  that  matter. 

The  Chicago  Eiver  and  its  branches  must,  therefore,  be  deemed 


ESCANABA  COMPANY  v.   CHICAGO.  303 

navigable  waters  of  the  United  States,  over  which  Congress  under 
its  commercial  power  may  exercise  control  to  the  extent  neces- 
sary to  protect,  preserve,  and  improve  their  free  navigation. 

But  the  States  have  full  power  to  regulate  within  their  limits 
matters  of  internal  police,  including  in  that  general  designation 
whatever  will  promote  the  peace,  comfort,  convenience,  and  pros- 
perity of  their  people.  This  power  embraces  the  construction  of 
roads,  canals,  and  bridges,  and  the  establishment  of  ferries,  and 
it  can  generally  be  exercised  more  wisely  by  the  States  than  by  a 
distant  authority.  They  are  the  first  to  see  the  importance  of 
such  means  of  internal  communication,  and  are  more  deeply  con- 
cerned than  others  in  their  wise  management.  Illinois  is  more 
immediately  affected  by  the  bridges  over  the  Chicago  Eiver  and 
its  branches  than  any  other  State,  and  is  more  directly  con- 
cerned for  the  prosperity  of  the  city  of  Chicago,  for  the  con- 
venience and  comfort  of  its  inhabitants,  and  the  growth  of  its 
commerce.  And  nowhere  could  the  power  to  control  the  bridges 
in  that  city,  their  construction,  form,  and  strength,  and  the  size 
of  their  draws,  and  the  manner  and  times  of  using  them,  be  bet- 
ter vested  than  with  the  State,  or  the  authorities  of  the  city  upon 
whom  it  has  devolved  that  duty.  When  its  power  is  exercised,  so 
as  to  unnecessarily  obstruct  the  navigation  of  the  river  or  its 
branches.  Congress  may  interfere  and  remove  the  obstruction.  If 
the  power  of  the  State  and  that  of  the  Federal  government  come 
in  conflict,  the  latter  must  control  and  the  former  yield.  This 
necessarily  follows  from  the  position  given  by  the  Constitution  to 
legislation  in  pursuance  of  it,  as  the  supreme  law  of  the  land. 
But  until  Congress  acts  on  the  subject,  the  power  of  the  State 
over  bridges  across  its  navigable  streams  is  plenary.  This  doc- 
trine has  been  recognized  from  the  earliest  period,  and  approved 
in  repeated  cases,  the  most  notable  of  which  are  Willson  v.  The 
Blackbird  Creek  Marsh  Co.,  2  Pet.,  245,  decided  in  1839,  and 
Oilman  v.  Philadelphia,  3  Wall.,  713,  decided  in  1865.  .  .  . 
[Here  follow  citations  fi*om  these  cases  and  from  Pound  v.  Turck, 
95  U.  S.,  459.] 

The  doctrine  declared  in  these  several  decisions  is  in  accord- 
ance with  the  more  general  doctrine  now  firmly  established,  that 
the  commercial  power  of  Congress  is  exclusive  of  State  authority 
only  when  the  subjects  upon  which  it  is  exercised  are  national  in 
their  character,  and  admit  and  require  uniformity  of  regulation 
affecting  alike  all  the  States.  Upon  such  subjects  only  that 
authority  can  act  which  can  speak  for  the  whole  country.  Its 
non-action  is  therefore  a  declaration  that  they  shall  remain  free 


304  CASES  ON  CONSTITUTIONAL  LAW. 

from  all  regulation.  Welton  v.  State  of  Missouri,  91  U.  S,,  275; 
Henderson  v.  Mayor  of  New  York,  92  Id.,  259;  County  of  Mobile 
V.  Kimball,  102  Id.,  691. 

On  the  other  hand,  where  the  subjects  on  which  the  power  may 
be  exercised  are  local  in  their  nature  or  operation,  or  constitute 
mere  aids  to  commerce,  the  authority  of  the  State  may  be  exerted 
for  their  regulation  and  management  until  Congress  interferes 
and  supersedes  it.  As  said  in  the  case  last  cited:  "The  uniform- 
ity of  commercial  regulations  which  the  grant  to  Congress  was 
designed  to  secure  against  conflicting  State  provisions,  was  neces- 
sarily intended  only  for  cases  where  such  uniformity  is  practicable. 
Where,  from  the  nature  of  the  subject  or  the  sphere  of  its  opera- 
tions, the  case  is  local  and  limited,  special  regulations,  adapted  to 
the  immediate  locality,  could  only  have  been  contemplated.  State 
action  upon  such  subjects  can  constitute  no  interference  with  the 
commercial  power  of  Congress,  for  when  that  acts  the  State 
authority  is  superseded.  Inaction  of  Congress  upon  these  subjects 
of  a  local  nature  or  operation,  unlike  its  inaction  upon  matters 
affecting  all  the  States  and  requiring  uniformity  of  regulation,  is 
not  to  be  taken  as  a  declaration  that  nothing  shall  be  done  in 
respect  to  them,  but  is  rather  to  be  deemed  a  declaration  that 
for  the  time  being  and  until  it  sees  fit  to  act  they  may  be  regu- 
lated by  State  authority." 

Bridges  over  navigable  streams,  which  are  entirely  within  the 
limits  of  a  State,  are  of  the  latter  class.  The  local  authority  can 
better  appreciate  their  necessity,  and  can  better  direct  the  manner 
in  which  they  shall  be  used  and  regulated  than  a  government  at 
a  distance.  It  is  therefore,  a  matter  of  good  sense  and  practical 
wisdom  to  leave  their  control  and  management  with  the  States, 
Congress  having  the  power  at  all  times  to  interfere  and  super- 
sede their  authority  whenever  they  act  arbitrarily  and  to  the 
injury  of  commerce. 

It  is,  however,  contended  here  that  Congress  has  interfered, 
and  by  its  legislation  expressed  its  opinion*  as  to  the  navigation  of 
Chicago  River  and  its  branches;  that  it  has  done  so  by  acts 
recognizing  the  ordinance  of  1787,  and  by  appropriations  for  the 
improvement  of  the  harbor  of  Chicago. 

The  ordinance  of  1787  for  the  government  of  the  territory  of 
the  United  States  northwest  of  the  Ohio  River,  contained  in  its 
fourth  article  a  clause  declaring  that,  "The  navigable  waters  lead- 
ing into  the  Mississippi  and  St.  Lawrence,  and  the  carrying  places 
between  them,  shall  be  common  highways  and  forever  free,  as  well 
to  the  inhabitants  of  the  said  territory  as  to  the  citizens  of 


ESCANABA  COMPANY  v.   CHICAGO.  305 

the  United  States  and  those  of  any  other  States  that  may  be  ad- 
mitted into  the  confederacyj  without  any  tax,  impost,  or  duty 
therefor." 

The  ordinance  was  passed  July  13,  1787,  one  year  and  nearly 
eight  months  before  the  Constitution  took  effect;  and  although  it 
appears  to  have  been  treated  afterwards  as  in  force  in  the  terri- 
tory, except  as  modified  by  Congress,  and  by  the  Act  of  May  7, 
1800,  c.  41,  creating  the  Territory  of  Indiana,  and  by  the  Act  of 
Feb.  3,  1809,  c.  13,  creating  the  Territory  of  Illinois,  the  rights 
and  privileges  granted  by  the  ordinance  are  expressly  secured  to 
the  inhabitants  of  those  Territories;  and  although  the  act  of 
April  18,  1818,  c,  67,  enabling  the  people  of  Illinois  Territory  to 
form  a  constitution  and  State  government,  and  the  resolution 
of  Congress  of  Dec,  3,  1818,  declaring  the  admission  of  the  State 
into  the  Union,  refer  to  the  principles  of  the  ordinance  accord- 
ing to  which  the  constitution  was  to  be  formed,  its  provisions 
could  not  control  the  authority  and  powers  of  the  State  after 
her  admission.  Whatever  the  limitation  upon  her  powers  as  a 
government  whilst  in  a  territorial  condition,  whether  from  the 
ordinance  of  1787  or  the  legislation  of  Congress,  it  ceased  to  have 
any  operative  force,  except  as  voluntarily  adopted  by  her,  after 
she  became  a  State  of  the  Union.  On  her  admission  she  at  once 
became  entitled  to  and  possessed  of  all  the  rights  of  dominion  and 
sovereignty  which  belonged  to  the  original  States.  She  was  ad- 
mitted, and  could  be  admitted,  only  on  the  same  footing  with 
them.  The  language  of  the  resolution  admitting  her  is  "on  an 
equal  footing  with  the  original  States  in  all  respects  whatever." 
3  Stat.,  536.  Equality  of  constitutional  right  and  power  is  the 
condition  of  all  the  States  of  the  Union,  old  and  new.  Illinois, 
therefore,  as  was  well  observed  by  counsel,  could  afterwards  exer- 
cise the  same  power  over  rivers  within  her  limits  that  Delaware 
exercised  over  Blackbird  Creek,  and  Pennsylvania  over  the  Schuyl- 
kill River.  Pollard's  Lessee  v.  Hagan,  3  How.,  212;  Permoli  v. 
First  Municipality,  Id.,  589;  Strader  v.  Graham,  10  Id.,  82. 

But  aside  from  these  considerations,  we  do  not  see  that  the 
clause  of  the  ordinance  upon  which  reliance  is  placed  materially 
affects  the  question  before  us.  That  clause  contains  two  provi- 
sions: one  that  the  navigable  waters  leading  into  the  Missis- 
sippi and  the  St.  Lawrence  shall  be  common  highways  to  the  in- 
habitants; and  the  other,  that  they  shall  be  forever  free  to  them 
without  any  tax,  impost,  or  duty  therefor.  The  navigation  of  the 
Illinois  River  is  free,  so  far  as  we  are  informed,  from  any  tax. 
Impost,  or  duty,  and  its  character  as  a  common  highway  is  not 


306  CASES   ON  CONSTITUTIONAL  LAW. 

affected  by  the  fact  that  it  is  crossed  by  bridges.  All  highways, 
whether  by  land  or  water,  are  subject  to  such  crossings  as  the 
public  necessities  and  convenience  may  require,  and  their  char- 
acter as  such  is  not  changed,  if  the  crossings  are  allowed  under 
reasonable  conditions,  and  not  so  as  to  needlessly  obstruct  the 
use  of  the  highways.  In  the  sense  in  which  the  terms  are  used 
by  publicists  and  statesmen,  free  navigation  is  consistent  with 
ferries  and  bridges  across  a  river  for  the  transit  of  persons  and 
merchandise  as  the  necessities  and  convenience  of  the  community 
may  require.  In  Palmer  v.  Commissioners  of  Cuyahoga  County 
we  have  a  case  in  point.  There  application  was  made  to  the  Cir- 
cuit Court  of  the  United  States  in  Ohio  for  an  injunction  to  re- 
strain the  erection  of  a  drawbridge  over  a  river  in  that  State  on 
the  ground  that  it  would  obstruct  the  navigation  of  the  stream 
and  injure  the  property  of  the  plaintiff.  The  application  was 
founded  on  the  provision  of  the  fourth  article  of  the  ordinance 
mentioned.  The  court,  which  was  presided  over  by  Mr.  Justice 
McLean,  then  having  a  seat  on  this  bench,  refused  the  injunction, 
observing  that  "This  provision  does  not  prevent  a  State  from  im- 
proving the  navigableness  of  these  waters,  by  removing  obstruc- 
tions, or  by  dams  and  locks,  so  increasing  the  depth  of  the  water 
as  to  extend  the  line  of  navigation.  Nor  does  the  ordinance  pro- 
hibit the  construction  of  any  work  on  the  river  which  the  State 
may  consider  important  to  commercial  intercourse.  A  dam  may 
be  thrown  over  the  river,  provided  a  lock  is  so  constructed  as  to 
permit  boats  to  pass  with  little  or  no  delay,  and  without  charge. 
A  temporary  delay,  such  as  passing  a  lock,  could  not  be  considered 
as  an  obstruction  prohibited  by  the  ordinance."  And  again: 
"A  drawbridge  across  a  navigable  water  is  not  an  obstruction.  As 
this  would  not  be  a  work  connected  with  the  navigation  of  the 
river,  no  toll,  it  is  supposed,  could  be  charged  for  the  passage  of 
boats.  But  the  obstruction  would  be  only  momentary,  to  raise 
the  draw;  and  as  such  a  work  may  be  very  important  in  a  gen- 
eral intercourse  of  a  community,  no  doubt  is  entertained  as  to  the 
power  of  the  State  to  make  the  bridge."  3  McLean,  22G.  The 
same  observations  may  be  made  of  the  subsequent  legislation  of 
Congress  declaring  that  navigable  rivers  within  the  Territories  of 
the  United  States  shall  be  deemed  public  highways.  Sect.  9  of 
the  act  of  May  18,  1796,  c.  29;  sect.  6  of  the  act  of  March  26, 
1804,  c.  35. 

As  to  the  appropriations  by  Congress,  no  money  has  been  ex- 
pended on  the  improvement  of  the  Chicago  River  above  the  first 
bridge  from  the  lake,  known  as  Rush  Street  Bridge.     No  bridge. 


ESCANABA  COMPANY  v.  CHICAGO.  307 

therefore,  interferes  with  the  navigation  of  any  portion  of  the 
river  which  has  been  thus  improved.  But,  if  it  were  otherwise,  it 
is  not  perceived  how  the  improvement  of  the  navigability  of  the 
stream  can  affect  the  ordinary  means  of  crossing  it  by  ferries  and 
bridges.  The  free  navigation  of  a  stream  does  not  require  an 
abandonment  of  those  means.  To  render  the  action  of  the  State 
invalid  in  constructing  or  authorizing  the  construction  of  bridges 
over  one  of  its  navigable  streams,  the  general  government  must 
directly  interfere  so  as  to  supersede  its  authority  and  annul  what 
it  has  done  in  the  matter. 

It  appeal's  from  the  testimony  in  the  record  that  the  money 
appropriated  by  Congress  has  been  expended  almost  exclusively 
upon  what  is  known  as  the  outer  harbor  of  Chicago,  a  part  of  the 
lake  surrounded  by  breakwaters.  The  fact  that  formerly  a  light- 
house was  erected  where  now  Eush  Street  Bridge  stands  in  no 
respect  affects  the  question.  A  ferry  was  then  used  there;  and 
before  the  construction  of  the  bridge  the  site  as  a  light-house  was 
abandoned.  The  existing  light-house  is  below  all  the  bridges.  The 
improvements  on  the  river  above  the  first  bridge  do  not  represent 
any  expenditure  of  the  government. 

From  any  view  of  this  case,  we  see  no  error  in  the  action  of 
the  court  below,  and  this  decree  must  accordingly  be 

Affirmed. 

Note. — A  municipal  ordinance  prohibiting  from  washing  and 
ironing  in  public  laundries  and  wash-houses  within  defined  terri- 
torial limits,  from  ten  o'clock  at  night  until  six  in  the  morning, 
is  a  purely  police  regulation,  within  the  competency  of  a  munici- 
pality possesed  of  ordinary  powers.  Barbier  v.  Connolly,  113 
U.  S.,  27. 

The  Fourteenth  Amendment  of  the  Constitution  does  not  im- 
pair the  police  power  of  a  State.     lb. 

The  prohibition  by  the  State  of  Kansas,  in  its  Constitution 
and  laws,  of  the  manufacture  and  sale  within  the  limits  of  the 
State  of  intoxicating  liquors  for  general  use  there  as  a  beverage, 
is  fairly  adapted  to  the  end  of  protecting  the  community  against 
the  evils  which  result  from  excessive  use  of  ardent  spirits,  and  is 
not  subject  to  the  objection  that,  under  the  guise  of  police  regu- 
lations, the  State  is  aiming  to  deprive  the  citizen  of  his  constitu- 
tional rights.    Mugler  v.  Kansas,  123  U.  S.,  623. 

See  also  The  License  Cases,  5  Howard,  504;  The  License  Tax 
Cases,  5  Wallace,  462;  Cooley  v.  Wardens,  12  Howard,  299;  Leisy 
V.  Hardin,  135  U.  S.,  100;  Minnesota  v.  Barber,  136  U.  S.,  313; 
and  The  Slaughter  House  Cases,  16  Wallace,  36. 


VI.  GENERAL  (IMPLIED)  POWERS. 


Mcculloch  v.  the  state  of  Maryland  et  al. 

4  Wheaton,  316.    Decided  1819. 

[The  statement  of  facts  and  the  second  part  of  the  opinion, 
beginning  on  page  425  of  Wheaton,  are  given  above,  page  32.  The 
first  part  of  the  opinion  is  given  below.] 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.     .     .     . 

The  first  question  made  in  the  cause  is,  has  congress  power  to 
incorporate  a  bank? 

It  has  been  truly  said,  that  this  can  scarcely  be  considered  as 
an  open  question,  entirely  unprejudiced  by  the  former  proceed- 
ings of  the  nation  respecting  it.  The  principle  now  contested 
was  introduced  at  a  very  early  period  of  our  history,  has  been 
recognized  by  many  successive  legislatures,  and  has  been  acted 
upon  by  the  judicial  department,  in  eases  of  peculiar  delicacy,  as 
a  law  of  undoubted  obligation. 

It  will  not  be  denied,  that  a  bold  and  daring  usurpation  might 
be  resisted,  after  an  acquiescence  still  longer  and  more  complete 
than  this.  But  it  is  conceived  that  a  doubtful  question,  one  on 
which  human  reason  may  pause,  and  the  human  judgment  be  sus- 
pended, in  the  decision  of  which  the  great  principles  of  liberty 
are  not  concerned,  but  the  respective  powers  of  those  who  are 
equally  the  representatives  of  the  people,  are  to  be  adjusted,  if 
not  put  at  rest  by  the  practice  of  the  government,  ought  to  re- 
ceive a  considerable  impression  from  that  practice.  An  exposi- 
tion of  the  constitution,  deliberately  established  by  legislative 
acts,  on  the  faith  of  which  an  immense  property  has  been  ad- 
vanced, ought  not  to  be  lightly  disregarded. 

The  power  now  contested  was  exercised  by  the  first  congress 
elected  under  the  present  constitution.  The  bill  for  incorporating 
the  Bank  of  the  United  States  did  not  steal  upon  an  unsuspecting 
legislature,  and  pass  unobserved.     Its  principle  was  completely 

308 


Mcculloch  v.  state  of  Maryland.  309 

understood,  and  was  opposed  with  equal  zeal  and  ability.  After 
being  resisted,  first  in  the  fair  and  open  field  of  debate,  and  after- 
wards in  the  executive  cabinet,  with  as  much  persevering  talent 
as  any  measure  has  ever  experienced,  and  being  supported  by  argu- 
ments which  convinced  minds  as  pure  and  as  intelligent  as  this 
country  can  boast,  it  became  a  law.  The  original  act  was  permit- 
ted to  expire;  but  a  short  experience  of  the  embarrassments  to 
which  the  refusal  to  revive  it  exposed  the  government,  convinced 
those  who  were  most  prejudiced  against  the  measure  of  its  neces- 
sity, and  induced  the  passage  of  the  present  law.  It  would  require 
no  ordinary  share  of  intrepidity  to  assert,  that  a  measure  adopted 
under  these  circumstances,  was  a  bold  and  plain  usurpation,  to 
which  the  constitution  gave  no  countenance. 

These  observations  belong  to  the  cause;  but  they  are  not  made 
under  the  impression  that,  were  the  question  entirely  new,  the 
law  would  be  found  irreconcilable  with  the  constitution. 

In  discussing  this  question,  the  counsel  for  the  State  of  Mary- 
land have  deemed  it  of  some  importance,  in  the  construction  of 
the  constitution,  to  consider  that  instrument  not  as  emanating 
from  the  people,  but  as  the  act  of  sovereign  and  independent 
S'tates.  The  powers  of  the  general  government,  it  has  been  said, 
are  delegated  by  the  States,  who  alone  are  truly  sovereign;  and 
must  be  exercised  in  subordination  to  the  States,  who  alone  pos- 
sess supreme  dominion. 

It  would  be  difficult  to  sustain  this  proposition.  The  conven- 
tion which  framed  the  constitution  was,  indeed,  elected  by  the 
state  legislatures.  But  the  instrument,  when  it  came  from  their 
hands,  was  a  mere  proposal,  without  obligation,  or  pretensions 
to  it.  It  was  reported  to  the  then  existing  congress  of  the  United 
States,  with  a  request  that  it  might  *^e  submitted  to  a  conven- 
tion of  delegates,  chosen  in  each  State,  by  the  people  thereof, 
under  the  recommendation  of  its  legislature,  for  their  assent  and 
ratification."  This  mode  of  proceeding  was  adopted;  and  by  the 
convention,  by  congress,  and  by  the  State  legislatures,  the  instru- 
ment was  submitted  to  the  people.  They  acted  upon  it,  in  the 
only  manner  in  which  they  can  act  safely,  effectively,  and  wisely, 
on  such  a  subject,  by  assembling  in  convention.  It  is  true,  they 
assembled  in  their  several  States;  and  where  else  should  they 
have  assembled?  No  political  dreamer  was  ever  wild  enough  to 
think  of  breaking  down  the  lines  which  separate  the  States,  and 
of  compounding  the  American  people  into  one  common  mass.  Of 
consequence,  when  they  act,  they  act  in  their  States.  But  the 
measures  they  adopt  do  not,  on  that  account,  cease  to  be  the 


310  CASES  ON  CONSTITUTIONAL  LAW. 

measures  of  the  people  themselves,  or  become  the  measures  of  the 
State  governments. 

From  these  conventions  the  constitution  derives  its  whole  au- 
thority. The  government  proceeds  directly  from  the  people;  is 
"ordained  and  established"  in  the  name  of  the  people;  and  is  de- 
clared to  be  ordained,  "in  order  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquillity,  and  secure  the  bless- 
ings of  liberty  to  themselves  and  to  their  posterity."  The  assent 
of  the  States,  in  their  sovereign  capacity,  is  implied  in  calling  a 
convention,  and  thus  submitting  that  instrument  to  the  people. 
But  the  people  were  at  perfect  liberty  to  accept  or  reject  it;  and 
their  act  w^as  final.  It  required  not  the  affirmance,  and  could  not 
be  negatived,  by  the  State  governments.  The  constitution,  when 
thus  adopted,  was  of  complete  obligation,  and  bound  the  State 
sovereignties. 

It  has  been  said  that  the  people  had  already  surrendered  all 
their  powers  to  the  State  sovereignties,  and  had  nothing  more  to 
give.  But,  surely,  the  question  whether  they  may  resume  and 
modify  the  powers  granted  to  government,  does  not  remain  to  be 
settled  in  this  country.  Much  more  might  the  legitimacy  of  the 
general  government  be  doubted,  had  it  been  created  by  the  States. 
The  powers  delegated  to  the  State  sovereignties  were  to  be  exer- 
cised by  themselves,  not  by  a  distinct  and  independent  sover- 
eignty, created  by  themselves.  To  the  formation  of  a  league,  such 
as  was  the  confederation,  the  State  sovereignties  were  certainly 
competent.  But  when,  "in  order  to  form  a  more  perfect  union," 
it  was  deemed  necessary  to  change  this  alliance  into  an  effective 
government,  possessing  great  and  sovereign  powers,  and  acting 
directly  on  the  people,  the  necessity  of  referring  it  to  the  people, 
and  of  deriving  its  powers  directly  from  them,  was  felt  and 
acknowledged  by  all. 

The  government  of  the  Union,  then  (whatever  may  be  the  influ- 
ence of  this  fact  on  the  case),  is  emphatically  and  truly  a  govern- 
ment of  the  people.  In  form  and  in  substance  it  emanates  from 
■them,  its  powers  are  granted  by  them,  and  are  to  be  exercised 
directly  on  them,  and  for  their  benefit. 

This  government  is  acknowledged  by  all  to  be  one  of  enumer- 
ated powers.  The  principle,  that  it  can  exercise  only  the  powers 
granted  to  it,  would  seem  too  apparent  to  have  required  to  be 
enforced  by  all  those  arguments  which  its  enlightened  friends, 
while  it  was  depending  before  the  people,  found  it  necessary  to 
urge.  That  principle  is  now  universally  admitted.  But  the  ques- 
tion respecting  the  extent  of  the  powers  actually  granted,  is  per- 


Mcculloch  v.  state  of  Maryland.  311 

petually  arising,  and  will  probably  continue  to  arise,  as  long  as 
our  system  shall  exist. 

In  discussing  these  questions,  the  conflicting  powers  of  the  gen- 
eral and  State  governments  must  be  brought  into  view,  and  the 
supremacy  of  their  respective  laws,  when  they  are  in  opposition, 
must  be  settled. 

■  If  any  one  proposition  could  command  the  universal  assent  of 
mankind,  we  might  expect  that  it  would  be  this:  that  the  govern- 
ment of  the  Union,  though  limited  in  its  powers,  is  supreme 
within  its  sphere  of  action.  This  would  seem  to  result  necessarily 
from  its  nature.  It  is  the  government  of  all;  its  powers  are  dele- 
gated by  all;  it  represents  all,  and  acts  for  all.  Though  any,  one 
State  may  be  willing  to  control  its  operations,  no  State  is  willing 
to  allow  others  to  control  them.  The  nation,  on  those  subjects 
on  which  it  can  act,  must  necessarily  bind  its  component  parts. 
But  this  question  is  not  left  to  mere  reason:  the  people  have,  in 
express  terms,  decided  it,  by  saying,  "this  constitution,  and  the 
laws  of  the  United  States,  which  shall  be  made  in  pursuance  there- 
of," "shall  be  the  supreme  law  of  the  land,"  and  by  requiring  that 
the  members  of  the  State  legislatures,  and  the  officers  of  the  exec- 
utive and  Judicial  departments  of  the  States,  shall  take  the  oath 
of  fidelity  to  it. 

The  government  of  the  United  States,  then,  though  limited  in 
its  powers,  is  supreme;  and  its  laws,  when  made  in  pursuance  of 
the  constitution,  form  the  supreme  law  of  the  land,  "anything  in 
the  constoution  or  laws  of  any  State,  to  the  contrary  notwith- 
standing." 

Among  the  enumerated  powers,  we  do  not  find  that  of  estab- 
lishing a  bank  or  creating  a  corporation.  But  there  is  no  phrase 
in  the  instrument  which,  like  the  articles  of  confederation,  ex- 
eludes  incidental  or  implied  powers;  and  which  requires  that 
everything  granted  shall  be  expressly  and  minutely  described. 
Even  the  10th  amendment,  which  was  framed  for  the  purpose  of 
quieting  the  excessive  jealousies  which  had  been  excited,  omits  the 
word  "expressly,"  and  declares  only  that  the  powers  "not  dele- 
gated to  the  United  States,  nor  prohibited  to  the  States,  are  re- 
served to  the  States  or  to  the  people;"  thus  leaving  the  question, 
whether  the  particular  power  which  may  become  the  subject  of 
contest,  has  been  delegated  to  the  one  government,  or  prohibited 
to  the  other,  to  depend  on  a  fair  construction  of  the  whole  instru- 
ment. The  men  who  drew  and  adopted  this  amendment,  had  ex- 
perienced the  embarrassments  resulting  from  the  insertion  of  this 
word  in  the  articles  of  confederation,  and  probably  omitted  it  to 


313  CASES  ON  CONSTITUTIONAL  LAW. 

avoid  those  embarrassments.  A  constitution,  to  contain  an  ac- 
curate detail  of  all  the  subdivisions  of  which  its  great  powers  will 
admit,  and  of  all  the  means  by  which  they  may  be  carried  into 
execution,  would  partake  of  the  prolixity  of  a  legal  code,  and  could 
scarcely  be  embraced  by  the  human  mind.  It  would  probably 
never  be  understood  by  the  public.  Its  nature,  therefore,  re- 
quires, that  only  its  great  outlines  should  be  marked,  its  impor- 
tant objects  designated,  and  the  minor  ingredients  which  com- 
pose those  objects  be  deduced  from  the  nature  of  the  objects 
themselves.  That  this  idea  was  entertained  by  the  framers  of  the 
American  constitution,  is  not  only  to  be  inferred  from  the  nature 
of  the  instrument,  but  from  the  language.  Why  else  were  some 
of  the  limitations,  found  in  the  9th  section  of  the  1st  article,  in- 
troduced? It  is  also,  in  some  degree,  warranted  by  their  having 
omitted  to  use  any  restrictive  term  which  might  prevent  its  re- 
ceiving a  fair  and  just  interpretation.  In  considering  this  ques- 
tion, then,  we  must  never  forget,  that  it  is  a  constitution  we  are 
expounding. 

Although,  among  the  enumerated  powers  of  government,  we 
do  not  find  the  word  "bank,"  or  "incorporation,"  we  find  the  great 
powers  to  lay  and  collect  taxes;  to  borrow  money;  to  regulate 
commerce;  to  declare  and  conduct  war;  and  to  raise  and  sup- 
port armies  and  navies.  The  sword  and  the  purse,  all  the  external 
relations,  and  no  inconsiderable  portion  of  the  industry  of  the 
nation,  are  intrusted  to  its  government.  It  can  never  be  pre- 
tended that  these  vast  powers  draw  after  them  others  of  inferior 
importance,  merely  because  they  are  inferior.  Such  an  idea  can 
never  be  advanced.  But  it  may,  with  great  reason,  be  contended, 
that  a  government,  intrusted  with  such  ample  powers,  on  the  due 
execution  of  which  the  happiness  and  prosperity  of  the  nation  so 
vitally  depends,  must  also  be  intrusted  with  ample  means  for  their 
execution.  The  power  being  given,  it  is  the  interest  of  the  nation 
to  facilitate  its  execution.  It  can  never  be  their  interest,  and 
cannot  be  presumed  to  have  been  their  intention,  to  clog  and 
embarrass  its  execution  by  withholding  the  most  appropriate 
means.  Throughout  this  vast  republic,  from  the  St.  Croix  to  the 
Gulf  of  Mexico,  from  the  Atlantic  to  the  Pacific,  revenue  is  to  be 
collected  and  expended,  armies  are  to  be  marched  and  supported. 
The  exigencies  of  the  nation  may  require,  that  the  treasure  raised 
in  the  Xorth  should  be  transported  to  the  South,  that  raised  in 
the  East  conveyed  to  the  West,  or  that  this  order  should  be  re- 
versed. Is  that  construction  of  the  constitution  to  be  preferred 
which  would  render  these  operations  difficult,  hazardous,  and  ex- 


Mcculloch  v.  state  of  Maryland.  313 

pensive?  Can  we  adopt  that  construction  (unless  the  words  im- 
periously require  it)  which  would  impute  to  the  framers  of  that 
instrumenft,  when  granting  these  powers  for  the  puhlic  good,  the 
intention  of  impeding  their  exercise  by  withholding  a  choice  of 
means?  If,  indeed,  such  be  the  mandate  of  the  constitution,  we 
have  only  to  obey;  but  that  instrument  does  not  profess  to 
enumerate  the  means  by  which  the  powers  it  confers  may  be  exe- 
cuted; nor  does  it  prohibit  the  creation  of  a  corporation,  if  the 
existence  of  such  a  being  be  essential  to  the  beneficial  exercise  of 
those  powers.  It  is,  then,  the  subject  of  fair  inquiry,  how  far  such 
means  may  be  employed. 

It  is  not  denied,  that  the  powers  given  to  the  government  imply 
the  ordinary  means  of  execution.  That,  for  example,  of  raising 
revenue,  and  applying  it  to  national  purposes,  is  admitted  to  imply 
the  power  of  conveying  money  from  place  to  place,  as  the  exigen- 
cies of  the  nation  may  require,  and  of  employing  the  usual  means 
of  conveyance.  But  it  is  denied  that  the  government  has  its 
choice  of  means;  or,  that  it  may  employ  the  most  convenient 
means,  if,  to  employ  them,  it  be  necessary  to  erect  a  corporation. 

On  what  foundation  does  this  argument  rest?  On  this  alone: 
The  power  of  creating  a  corporation,  is  one  appertaining  to  sov- 
ereignty, and  is  not  expressly  conferred  on  Congress.  This  is  true. 
But  all  legislative  powers  appertain  to  sovereignty.  The  original 
power  of  giving  the  law  on  any  subject  whatever,  is  a  sovereign 
power;  and  if  the  government  of  the  Union  is  restrained  from 
creating  a  corporation,  as  a  means  for  performing  its  functions, 
on  the  single  reason  that  the  creation  of  a  corporation  is  an  act 
of  sovereignty;  if  the  suificiency  of  this  reason  be  acknowledged, 
there  would  be  some  difficulty  in  sustaining  the  authority  of  con- 
gress to  pass  other  laws  for  the  accomplishment  of  the  same  ob- 
jects. 

The  government  which  has  a  right  to  do  an  act,  and  has  im 
posed  on  it  the  duty  of  performing  that  act,  must,  according  to 
the  dictates  of  reason,  be  allowed  to  select  the  means;  and  those 
who  contend  that  it  may  not  select  any  appropriate  means,  that 
one  particular  mode  of  effecting  the  object  is  excepted,  take  upon 
themselves  the  burden  of  establishing  that  exception. 

The  creation  of  a  corporation,  it  is  said,  appertains  to  sover- 
eignty. This  is  admitted.  But  to  what  portion  of  sovereignty  does 
it  appertain?  Does  it  belong  to  one  more  than  to  another?  In 
America,  the  powers  of  sovereignty  are  divided  between  the  gov- 
ernment of  the  Union,  and  those  of  the  States.  They  are  each 
sovereign,  with  respect  to  the  objects  committed  to  it,  and  neither 


314  CASES  ON  CONSTITUTIONAL  LAW. 

sovereign  with  respect  to  the  objects  committed  to  the  other.  We 
cannot  comprehend  that  train  of  reasoning  which  would  maintain, 
that  the  extent  of  power  granted  by  the  people  is  to  be  ascertained, 
not  by  the  nature  and  terms  of  the  grant,  but  by  its  date.  Some 
state  constitutions  were  formed  before,  some  since  that  of  the 
United  States.  We  cannot  believe  that  their  relation  to  each  other 
is  in  any  degree  dependent  upon  this  circumstance.  Their  respect- 
ive powers  must,  we  think,  be  precisely  the  same  as  if  they  had  been 
formed  at  the  same  time.  Had  they  been  formed  at  the  same  time, 
and  had  the  people  conferred  on  the  general  government  the  power 
contained  in  the  constitution,  and  on  the  States  the  whole  re- 
siduum of  power,  would  it  have  been  asserted  that  the  government 
of  the  Union  was  not  sovereign  with  respect  to  those  objects 
which  were  intrusted  to  it,  in  relation  to  which  its  laws  were  de- 
clared to  be  supreme?  If  this  could  not  have  been  asserted,  we 
cannot  well  comprehend  the  process  of  reasoning  which  main- 
tains, that  a  power  appertaining  to  sovereignty  cannot  be  con- 
nected with  that  vast  portion  of  it  which  is  granted  to  the  general 
government,  so  far  as  it  is  calculated  to  subserve  the  legitimate 
objects  of  that  government.  The  power  of  creating  a  corpora- 
tion, though  appertaining  to  sovereignty,  is  not,  like  the  power 
of  making  war,  or  levying  taxes,  or  of  regulating  commerce,  a 
great  substantive  and  independent  power,  which  cannot  be  im- 
plied as  incidental  to  other  powers,  or  used  as  a  means  of  executing 
them.  It  is  never  the  end  for  which  other  powers  are  exercised, 
but  a  means  by  which  other  objects  are  accomplished.  No  con- 
tributions are  made  to  charity  for  the  sake  of  an  incorporation, 
but  a  corporation  is  created  to  administer  the  charity;  no  seminary 
of  learning  is  instituted  in  order  to  be  incorporated,  but  the  cor- 
porate character  is  conferred  to  subserve  the  purposes  of  educa- 
tion. Xo  city  was  ever  built  with  the  sole  object  of  being  incor- 
porated, but  is  incorporated  as  affording  the  best  means  of  being 
well  governed.  The  power  of  creating  a  corporation  is  never  used 
for  its  own  sake,  but  for  the  puropse  of  effecting  something  else. 
No  sufficient  reason  is,  therefore,  perceived,  why  it  may  not  pass 
as  incidental  to  those  powers  which  are  expressly  given,  if  it  be  a 
direct  mode  of  executing  them. 

But  the  constitution  of  the  United  States  has  not  left  the  right 
of  congress  to  employ  the  necessary  means,  for  the  execution  of 
the  powers  conferred  on  the  government,  to  general  reasoning. 
To  its  enumeration  of  powers  is  added  that  of  making  "all  laws 
which  shall  be  necessary  and  proper,  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this  constitu- 


McCXJLLOCH   V.    STATE   OF   MARYLAND.  315 

tion,  in  the  government  of  the  United  States,  or  in  any  depart- 
ment thereof." 

The  counsel  for  the  State  of  Maryland  have  urged  various  argu- 
ments, to  prove  that  this  clause,  though  in  terms  a  grant  of  power, 
is  not  so  in  effect;  but  is  really  restrictive  of  the  general  right, 
which  might  otherwise  be  implied,  of  selecting  means  for  execut- 
ing the  enumerated  powers. 

In  support  of  this  proposition,  they  have  found  it  necessary  to 
contend,  that  this  clause  was  inserted  for  the  purpose  of  confer- 
ring on  congress  the  power  of  making  laws.  That,  without  it, 
doubts  might  be  entertained,  whether  congress  could  exercise  its 
powers  in  the  form  of  legislation. 

But  could  this  be  the  object  for  which  it  was  inserted?  A 
government  is  created  by  the  people,  having  legislative,  executive, 
and  judicial  powers.  Its  legislative  powers  are  vested  in  a  con- 
gress, which  is  to  consist  of  a  senate  and  house  of  representatives. 
Each  house  may  determine  the  rule  of  its  proceedings;  and  it  is 
declared  that  every  bill  which  shall  have  passed  both  houses, 
shall,  before  it  becomes  a  law,  be  presented  to  the  President  of 
the  United  States.  The  7th  section  describes  the  course  of  pro- 
ceedings, by  which  a  bill  shall  become  a  law;  and,  then,  the  8th 
section  enumerates  the  powers  of  congress.  Could  it  be  necessary 
to  say,  that  a  legislature  should  exercise  legislative  powers,  in  the 
shape  of  legislation?  After  allowing  each  house  to  prescribe  its 
own  course  of  proceeding,  after  describing  the  manner  in  which 
a  bill  should  become  a  law,  would  it  have  entered  into  the  mind 
of  a  single  member  of  the  convention,  that  an  express  power  to 
make  laws  was  necessary  to  enable  the  legislature  to  make  them? 
That  a  legislature,  endowed  with  legislative  powers,  can  legislate, 
is  a  proposition  too  self-evident  to  have  been  questioned. 

But  the  argument  on  which  most  reliance  is  placed,  is  drawn 
from  the  peculiar  language  of  this  clause.  Congress  is  not  em- 
powered by  it  to  make  all  laws,  which  may  have  relation  to  the 
powers  conferred  on  the  government,  but  only  such  as  may  be 
"necessary  and  proper"  for  carrying  them  into  execution.  The 
word  "necessary"  is  considered  as  controlling  the  whole  sentence, 
and  as  limiting  the  right  to  pass  laws  for  the  execution  of  the 
granted  powers,  to  such  as  are  indispensable,  and  without  which 
the  power  would  be  nugatory.  That  it  excludes  the  choice  of 
means,  and  leaves  to  congress,  in  each  case,  that  only  which  is 
most  direct  and  simple. 

Is  it  true,  that  this  is  the  sense  in  which  the  word  "necessary" 
is  always  used?    Does  it  always  import  an  absolute  physical  neces- 


316  CASES  ON  CONSTITUTIONAL  LAW. 

sity,  so  strong,  that  one  thing,  to  which  another  may  be  termed 
necessary,  cannot  exist  without  that  other?  We  think  it  does  not. 
If  reference  be  had  to  its  use,  in  the  common  affairs  of  the  world, 
or  in  approved  authors,  we  find  that  it  frequently  imports  no  more 
than  that  one  thing  is  convenient,  or  useful,  or  essential  to  an- 
other. To  employ  the  means  necessary  to  an  end,  is  generally 
understood  as  employing  any  means  calculated  to  produce  the  end, 
and  not  as  being  confined  to  those  single  means,  without  which 
the  end  would  be  entirely  unattainable.  Such  is  the  character 
of  human  language,  that  no  word  conveys  to  the  mind,  in  all  situ- 
ations, one  single  definite  idea;  and  nothing  is  more  common 
than  to  use  words  in  a  figurative  sense.  Almost  all  compositions 
contain  words,  which,  taken  in  their  rigorous  sense,  would  convey 
a  meaning  different  from  that  which  is  obviously  intended.  It  is 
essential  to  just  construction,  that  many  words  which  import 
something  excessive,  should  be  understood  in  a  more  mitigated 
sense — ^in  that  sense  which  common  usage  justifies.  The  word 
"necessary"  is  of  this  description.  It  has  not  a  fixed  character 
peculiar  to  itself.  It  admits  of  all  degrees  of  comparison;  and  is 
often  connected  with  words,  which  increase  or  diminish  the  im- 
pression the  mind  receives  of  the  urgency  it  imports.  A  thing 
may  be  necessary,  very  necessary,  absolutely  or  indispensably  nec- 
essary. To  no  mind  would  the  same  idea  be  conveyed,  by  these 
several  phrases.  This  comment  on  the  word  is  well  illustrated, 
by  the  passage  cited  at  the  bar,  from  the  10th  section  of  the  1st 
article  of  the  constitution.  It  is,  we  think,  impossible  to  com- 
pare the  sentence  which  prohibits  a  State  from  laying  "imposts, 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws,"  with  that  which  au- 
thorizes congress  "to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution"  the  powers  of  the  general  gov- 
ernment, without  feeling  a  conviction  that  the  convention  under- 
stood itself  to  change  materially  the  meaning  of  the  word  "neces- 
sary" by  prefixing  the  word  "absolutely."  This  word,  then,  like 
others,  is  used  in  various  senses;  and,  in  its  construction,  the  sub- 
ject, the  context,  the  intention  of  the  person  using  them,  are  all 
to  be  taken  into  view. 

Let  this  be  done  in  the  case  under  consideration.  The  subject 
is  the  execution  of  those  great  powers  on  which  the  welfare  of  a 
nation  essentially  depends.  It  must  have  been  the  intention  of 
those  who  gave  these  powers,  to  insure  as  far  as  human  prudence 
could  insure,  their  beneficial  execution.  This  could  not  be  done 
by  confining  the  choice  of  means  to  such  narrow  limits  as  not  to 


Mcculloch  v.  state  of  Maryland.  317 

leave  it  in  the  power  of  congress  to  adopt  any  which  might  be 
appropriate,  and  which  were  conducive  to  the  end.  This  pro- 
vision is  made  in  a  constitution  intended  to  endure  for  ages  to 
come,  and,  consequently,  to  be  adapted  to  the  various  crises  of 
human  affairs.  To  have  prescribed  the  means  by  which  govern- 
ment should,  in  all  future  time,  execute  its  powers,  would  have 
been  to  change,  entirely,  the  character  of  the  instrument,  and 
give  it  the  properties  of  a  legal  code.  It  would  have  been  an  un- 
wise attempt  to  provide,  by  immutable  rules,  for  exigencies  which, 
if  foreseen  at  all,  must  have  been  seen  dimly,  and  which  can  be 
best  provided  for  as  they  occur.  To  have  declared  that  the  best 
means  shall  not  be  used,  but  those  alone  without  which  the  power 
given  would  be  nugatory,  would  have  been  to  deprive  the  legis- 
lature of  the  capacity  to  avail  itself  of  experience,  to  exercise  its 
reason,  and  to  accommodate  its  legislation  to  circumstances.  If 
we  apply  this  principle  of  construction  to  any  of  the  powers  of  the 
government,  we  shall  find  it  so  pernicious  in  its  operation  that  we 
shall  be  compelled  to  discard  it.  The  powers  vested  in  congress 
may  certainly  be  carried  into  execution,  without  prescribing  an 
oath  of  office.  The  power  to  exact  this  security  for  the  faithful 
performance  of  duty,  is  not  given,  nor  is  it  indispensably  necessary. 
The  different  departments  may  be  established;  taxes  may  be  im- 
posed and  collected;  armies  and  navies  may  be  raised  and  main- 
tained; and  money  may  be  borrowed,  without  requiring  an  oath 
of  office.  It  might  be  argued,  with  as  much  plausibility,  as  other 
incidental  powers  have  been  assailed,  that  the  convention  was  not 
unmindful  of  this  subject.  The  oath  which  might  be  exacted — 
that  of  fidelity  to  the  constitution — is  prescribed,  and  no  other 
can  be  required.  'Yet,  he  would  be  charged  with  insanity  who 
should  contend,  that  the  legislature  might  not  superadd  to  the 
oath  directed  by  the  constitution,  such  other  oath  of  office  as  its 
wisdom  might  suggest. 

So,  with  respect  to  the  whole  penal  code  of  the  United  States, 
Whence  arises  the  power  to  punish  in  cases  not  prescribed  by  the 
constitution?  All  admit  that  the  government  may,  legitimately, 
punish  any  violation  of  its  laws;  and  yet,  this  is  not  among  the 
enumerated  powers  of  congi-ess.  The  right  to  enforce  the  ob- 
servance of  law,  by  punishing  its  infraction,  might  be  denied  with 
the  more  plausibility,  because  it  is  expressly  given  in  some  cases. 
Congress  is  empowered  "to  provide  for  the  punishment  of  coun- 
terfeiting the  securities  and  current  coin  of  the  United  States," 
and  "to  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offenses  against  the  law  of  nations."    The  several 


318  CASES  ON  CONSTITUTIONAL  LAW. 

powers  of  congress  may  exist,  in  a  very  imperfect  state  to  be 
sure,  but  they  may  exist  and  be  carried  into  execution,  although 
no  punishment  should  be  inflicted  in  cases  where  the  right  to 
punish  is  not  expressly  given. 

Take,  for  example,  the  power  "to  establish  post-offices  and 
post-roads."  This  power  is  executed  by  the  single  act  of  making 
the  establishment.  But  from  this  has  been  inferred  the  power 
and  duty  of  carrying  the  mail  along  the  post-road,  from  one  post- 
office  to  another.  And,  from  this  implied  power,  has  again  been 
inferred  the  right  to  punish  those  who  steal  letters  from  the  post- 
office,  or  rob  the  mail.  It  may  be  said,  with  some  plausibility,  that 
the  right  to  carry  the  mail,  and  to  punish  those  who  rob  it,  is  not 
indispensably  necessary  to  the  establishment  of  a  post-office  and 
post-road.  This  right  is,  indeed,  essential  to  the  beneficial  exer- 
cise of  the  power,  but  not  indispensably  necessary  to  its  existence. 
So,  of  the  punishment  of  the  crimes  of  stealing  or  falsifying  a 
record  or  process  of  a  court  of  the  United  States,  or  of  perjury  in 
such  court.  To  punish  these  offenses  is  certainly  conducive  to 
the  due  administration  of  justice.  But  courts  may  exist,  and  may 
decide  the  causes  brought  before  them,  though  such  crimes  escape 
punishment. 

The  baneful  influence  of  this  narrow  construction  on  all  the 
operations  of  the  government,  and  the  absolute  impracticability 
of  maintaining  it  without  rendering  the  government  incompetent 
to  its  great  objects,  might  be  illustrated  by  numerous  examples 
drawn  from  the  constitution,  and  from  our  laws.  The  good  sense 
of  the  public  has  pronounced,  without  hesitation,  that  the  power 
of  punishment  appertains  to  sovereignty,  and  may  be  exercised 
whenever  the  sovereign  has  a  right  to  act,  ^s  incidental  to  his 
constitutional  powers.  It  is  a  means  for  carrying  into  execution 
all  sovereign  powers,  and  may  be  used,  although  not  indispensa- 
bly necessary.  It  is  a  right  incidental  to  the  power,  and  conducive 
to  its  beneficial  exercise. 

If  this  limited  construction  of  the  word  "necessary"  must  be 
abandoned  in  order  to  punish,  whence  is  derived  the  rule  which 
would  reinstate  it,  when  the  government  would  carry  its  powers 
into  execution  by  means  not  vindictive  in  their  nature?  If  the 
word  "necessary"  means  "needful,"  "requisite,"  "essential,"  "con- 
ducive to,"  in  order  to  let  in  the  power  of  punishment  for  the  in- 
fraction of  law,  why  is  it  not  equally  comprehensive  when  required 
to  authorize  the  use  of  means  which  facilitate  the  execution  of  the 
powers  of  government  without  the  infliction  of  punishment? 

In  ascertaining  the  sense  in  which  the  word  "necessary"  is  used 


Mcculloch  v.  state  of  Maryland.  319 

in  this  clause  of  the  constitution,  we  may  derive  some  aid  from 
that  with  which  it  is  associated.  Congress  shall  have  power  "to 
make  all  laws  which  shall  be  necessary  and  proper  to  carry  into 
execution"  the  powers  of  the  government.  If  the  word  "neces- 
sary" was  used  in  that  strict  and  rigorous  sense  for  which  the 
counsel  for  the  State  of  Maryland  contend,  it  would  be  an  ex- 
traordinary departure  from  the  usual  course  of  the  human  mind, 
as  exhibited  in  composition,  to  add  a  word,  the  only  possible  effect 
of  which  is  to  qualify  that  strict  and  rigorous  meaning;  to  pre- 
sent to  the  mind  the  idea  of  some  choice  of  means  of  legislation 
not  straitened  and  compressed  within  the  narrow  limits  for  which 
gentlemen  contend. 

But  the  argument  which  most  conclusively  demonstrates  the 
error  of  the  construction  contended  for  by  the  counsel  for  the  State 
of  Maryland,  is  founded  on  the  intention  of  the  convention,  as 
manifested  in  the  whole  clause.  To  waste  time  and  argument  in 
proving  that,  without  it,  congress  might  carry  its  powers  into  exe- 
cution, would  be  not  much  less  idle  than  to  hold  a  lighted  taper 
to  the  sun.  As  little  can  it  be  required  to  prove,  that  in  the  ab- 
sence of  this  clause,  congress  would  have  some  choice  of  means. 
That  it  might  employ  those  which,  in  its  Judgment,  would  most 
advantageously  effect  the  object  to  be  accomplished.  That  any 
means  adapted  to  the  end,  any  means  which  tended  directly  to 
the  execution  of  the  constitutional  powers  of  the  government, 
were  in  themselves  constitutional.  This  clause,  as  construed  by 
the  State  of  Maryland,  would  abridge  and  almost  annihilate  this 
useful  and  necessary  right  of  the  legislature  to  select  its  means. 
That  this  could  not  be  intended,  is,  we  should  think,  had  it  not 
been  already  controverted,  too  apparent  for  controversy.  We 
think  so  for  the  following  reasons: — 

1.  The  clause  is  placed  among  the  powers  of  congress,  not 
among  the  limitations  on  those  powers. 

•  2.  Its  terms  purport  to  enlarge,  not  to  diminish  the  powers 
vested  in  the  government.  It  purports  to  be  an  additional  power, 
not  a  restriction  on  those  already  granted.  No  reason  has  been 
or  can  be  assigned,  for  thus  concealing  an  intention  to  narrow  the 
discretion  of  the  national  legislature,  under  words  which  purport 
to  enlarge  it.  The  framers  of  the  constitution  wished  its  adoption, 
and  well  knew  that  it  would  be  endangered  by  its  strength,  not  by 
its  weakness.  Had  they  been  capable  of  using  language  which 
would  convey  to  the  eye  one  idea,  and  after  deep  reflection,  im- 
press on  the  mind  another,  they  would  rather  have  disguised  the 
grant  of  power^  than  its  limitation.     If  then,  their  intention  had 


320  CASES  ON  CONSTITUTIONAL  LAW. 

been,  by  this  clause,  to  restrain  the  free  use  of  means  which  might 
othenvise  have  been  implied,  that  intention  would  have  been  in- 
serted in  another  place,  and  would  have  been  expressed  in  terms 
resembling  these:  "In  carrying  into  execution  the  foregoing  pow- 
ers, and  all  others,"  &c.,  "no  laws  shall  be  passed  but  such  as  are 
necessary  and  proper."  Had  the  intention  been  to  make  this 
clause  restrictive,  it  would  unquestionably  have  been  so  in  form 
as  well  as  in  effect. 

The  result  of  the  most  careful  and  attentive  consideration  be- 
stowed upon  this  clause  is,  that  if  it  does  not  enlarge,  it  cannot 
be  construed  to  restrain  the  powers  of  congress,  or  to  impair  the 
right  of  the  legislature  to  exercise  its  best  judgment  in  the  selec- 
tion of  measures,  to  carry  into  execution  the  constitutional  powers 
of  the  government.  If  no  other  motive  for  its  insertion  can  be 
suggested,  a  sufficient  one  is  found  in  the  desire  to  remove  all 
doubts  respecting  the  right  to  legislate  on  that  vast  mass  of  inci- 
dental powers  which  must  be  involved  in  the  constitution,  if  that 
instrument  be  not  a  splendid  bauble. 

We  admit,  as  all  must  admit,  that  the  powers  of  the  govern- 
ment are  limited,  and  that  its  limits  are  not  to  be  transcended. 
But  we  think  the  sound  construction  of  the  constitution  must 
allow  to  the  national  legislature  that  discretion,  with  respect  to 
the  means  by  which  the  powers  it  confers  are  to  be  carried  into 
execution,  which  will  enable  that  body  to  perform  the  high  duties 
assigned  to  it,  in  the  manner  most  beneficial  to  the  people.  Let 
the  end  be  legitimate,  let  it  be  within  the  scope  of  the  constitu- 
tion, and  all  means  which  are  appropriate,  which  are  plainly 
adapted  to  that  end,  which  are  not  prohibited,  but  consist  with 
the  letter  and  spirit  of  the  constitution,  are  constitutional. 

That  a  corporation  must  be  considered  as  a  means  not  less 
usual,  not  of  higher  dignity,  not  more  requiring  a  particular  speci- 
fication than  other  means,  has  been  sufficiently  proved.  If  we 
look  to  the  origin  of  corporations,  to  the  manner  in  which  they 
have  been  framed  in  that  government,  from  which  we  have  de- 
rived most  of  our  legal  principles  and  ideas,  or  to  the  uses  to 
which  they  have  been  applied,  we  find  no  reason  to  suppose  that 
a  constitution,  omitting,  and  wisely  omitting,  to  enumerate  all  the 
means  for  carrying  into  executioh  the  great  powers  vested  in  gov- 
ernment, ought  to  have  specified  this.  Had  it  been  intended  to 
grant  this  power  as  one  which  should  be  distinct  and  independent, 
to  be  exercised  in  any  case  whatever,  it  would  have  found  a  place 
among  the  enumerated  powers  of  the  government.  But  being 
considered  merely  as  a  means,  to  be  employed  only  for  the  pur- 


Mcculloch  v.  state  of  Maryland.  321 

pose  of  carrying  into  execution  the  given  powers,  there  could  be 
no  motive  for  particularly  mentioning  it. 

The  propriety  of  this  remark  would  seem  to  be  generally 
acknowledged  by  the  universal  acquiescence  in  the  construction 
which  has  been  uniformly  put  on  the  3d  section  of  the  4th  article 
of  the  constitution.  The  power  to  "make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging 
to  the  United  States,"  is  not  more  comprehensive,  than  the  power 
"to  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution"  the  powers  of  the  government.  Yet  all  admit  the 
constitutionality  of  a  territorial  government,  which  is  a  corporate 
body. 

If  a  corporation  may  be  employed  indiscriminately  with  other 
means  to  carry  into  execution  the  powers  of  the  government,  no 
particular  reason  can  be  assigned  for  excluding  the  use  of  a  bank, 
if  required  for  its  fiscal  operations.  To  use  one,  must  be  within 
the  discretion  of  congress,  if  it  be  an  appropriate  mode  of  execut- 
ing the  powers  of  government.  That  it  is  a  convenient,  a  useful, 
and  essential  instrument  in  the  prosecution  of  its  fiscal  operations, 
is  not  now  a  subject  of  controversy.  All  those  who  have  been 
concerned  in  the  administration  of  our  finances,  have  concurred 
in  representing  its  importance  and  necessity;  and  so  strongly 
have  they  been  felt,  that  statesmen  of  the  first  class,  whose  pre- 
vious opinions  against  it  had  been  confirmed  by  every  circum- 
stance which  can  fix  the  human  judgment,  have  yielded  those 
opinions  to  the  exigencies  of  the  nation.  Under  the  confederation, 
congress  justifying  the  measure  by  its  necessity,  transcended,  per- 
haps, its  powers  to  obtain  the  advantage  of  a  bank;  and  our  own 
legislation  attests  the  universal  conviction  of  the  utility  of  this 
measure.  The  time  has  passed  away  when  it  can  be  necessary  to 
enter  into  any  discussion  in  order  to  prove  the  importance  of  this 
instrument,  as  a  means  to  effect  the  legitimate  objects  of  the  gov- 
ernment. 

But  were  its  necessity  less  apparent,  none  can  deny  its  being  an 
appropriate  measure;  and  if  it  is,  the  degree  of  its  necessity,  as 
has  been  very  justly  observed,  is  to  be  discussed  in  another  place. 
Should  congress,  in  the  execution  of  its  powers,  adopt  measures 
which  are  prohibited  by  the  constitution;  or  should  congi*ess, 
under  the  pretext  of  executing  its  powers,  pass  laws  for  the  ac- 
complishment of  objects  not  intrusted  to  the  government,  it  would 
become  the  painful  duty  of  this  tribunal,  should  a  case  requiring 
such  a  decision  come  before  it,  to  say  that  such  an  act  was  not 
the  law  of  the  land.  But  where  the  law  is  not  prohibited,  and  is 
21 


322  CASES  ON  CONSTITUTIONAL  LAW. 

really  calculated  to  effect  any  of  the  objects  intrusted  to  the  gov- 
ernment, to  undertake  here  to  inquire  into  the  degree  of  its  neces- 
sity, would  be  to  pass  the  line  which  circumscribes  the  judicial 
department,  and  to  tread  on  legislative  ground.  This  court  dis- 
claims all  pretensions  to  such  a  power. 

After  this  declaration,  it  can  scarcely  be  necessary  to  say,  that 
the  existence  of  state  banks  can  have  no  possible  influence  on  the 
question.  No  trace  is  to  be  found  in  the  constitution  of  an  inten- 
tion to  create  a  dependence  of  the  government  of  the  Union  on 
those  of  the  States,  for  the  execution  of  the  great  powers  assigned 
to  it.  Its  means  are  adequate  to  its  ends;  and  on  those  means 
alone  was  it  expected  to  rely  for  the  accomplishment  of  its  ends. 
To  impose  on  it  the  necessity  of  resorting  to  means  which  it  can- 
not control,  which  another  government  may  furnish  or  withhold, 
would  render  its  course  precarious,  the  result  of  its  measures  un- 
certain, and  create  a  dependence  on  other  governments,  which 
might  disappoint  its  most  important  designs,  and  is  incompatible 
with  the  language  of  the  constitution.  But  were  it  otherwise,  the 
choice  of  means  implies  a  right  to  choose  a  national  bank  in  prefer- 
ence to  state  banks,  and  congress  alone  can  make  the  election. 

After  the  most  deliberate  consideration,  it  is  the  unanimous  and 
decided  opinion  of  this  court,  thait  the  act  to  incorporate  the  Bank 
of  the  United  States  is  a  law  made  in  pursuance  of  the  constitu- 
tion, and  is  a  part  of  the  supreme  law  of  the  land. 

The  branches,  proceeding  from  the  same  stock,  and  being  con- 
ducive to  the  complete  accomplishment  of  the  object,  are  equally 
constitutional.  It  would  have  been  unwise  to  locate  them  in  the 
charter,  and  it  would  be  unnecessarily  inconvenient  to  employ  the 
legislative  power  in  making  those  subordinate  arrangements. .  The 
great  duties  of  the  bank  are  prescribed;  those  duties  require 
branches,  and  the  bank  itself  may,  we  think,  be  safely  trusted 
with  the  selection  of  places  where  'those  branches  shall  be  fixed; 
resendng  always  to  the  government  the  rierht  to  require  that  a 
branch  shall  be  located  where  it  may  be  deemed  necessary. 

It  being  the  opinion  of  the  court  that  the  act  incorporating  the 
bank  is  constitutional;  and  that  the  power  of  establishing  a 
branch  in  the  State  of  Maryland  might  be  properly  exercised  by 
the  bank  itself,  we  proceed  to  inquire: — 

2.  Whether  the  State  of  Maryland  may,  without  violating  the 
constitution,  tax  that  branch?     .     .     . 

We  are  unanimously  of  opinion,  thait  the  law  passed  by  the 
legislature  of  Maryland,  imposing  a  tax  on  the  Bank  of  the  United 
States,  is  unconstitutional  and  void.     .     .     . 


Mcculloch  v.  state  of  Maryland.  323 

Note. — The  most  important  discussions  of  the  implied  powers 
of  Congress  are  those  found  in  the  legal  tender  cases.  See  Knox 
V.  Lee,  12  Wallace,  457,  and  Juilliard  v.  Greenman,  110  U.  S., 
421.  See  also  James  Wilson's  Considerations  on  the  Power  to 
Incorporate  the  Bank  of  North  America,  Works  (Andrews'  edi- 
tion), I,  549-577.  Although  a  discussion  of  the  inherent  or  im- 
plied powers  of  the  Confederation,  its  reasoning  is  applicable  to 
the  implied  powers  of  the  government  under  ihe  Constitution. 

Bryce  says  of  Marshall's  opinion  in  this  case  (American  Com- 
monwealth, 3d  Ed.,  I,  379,  note),  "This  is  really  a  working-out  of 
one  of  the  points  of  Hamilton's  famous  argument  in  favor  of  the 
constitutionality  of  a  United  States  bank:  'Every  power  vested 
in  a  government  is  in  its  nature  sovereign,  and  includes  by  force 
of  the  term  a  right  to  employ  all  the  means  requisite  and  fairly 
applicable  to  the  attainment  of  the  ends  of  such  power,  and  which 
are  not  precluded  by  restrictions  and  exceptions  specified  in  the 
Constitution.'    Works  (Lodge's  Ed.),  vol.  iii,  p.  181." 

"It  is  unnecessary  for  me  to  point  out  .  .  .  the  great  influ- 
ence which  that  decision  of  the  Supreme  Court  has  exercised  over 
the  material  and  financial  prosperity  of  this  country.  Had  the 
decision  been,  that  there  existed  in  this  government  no  power  to 
create  a  national  currency,  or  'to  provide  for  a  national  banking 
system,  the  disastrous  effects  upon  the  business  prosperity  of  the 
people  can  hardly  be  im|igined.  Those  who  are  old  enough  to 
have  gone  through  the  State  bank  and  wildcat  systems  of  paper 
money  prevalent  a  few  years  since  in  this  country,  can  bear  feeling 
testimony  to  the  value  of  a  so-called  national  bank  system." 
Miller,  Lectures  on  the  Constitution  of  the  United  States,  391. 


VII.    EXECUTIVE  POWERS. 


In  Ex  PARTE  Garland,  4  Wallace,  333  (1866),  the  validity  of 
an  act  of  Congress  requiring  every  person  admitted  to  practice 
before  a  United  States  court  to  take  an  oath  that  he  had  never 
borne  arms  against  the  United  States  nor  held  ofl&ce  under  any 
authority  hostile  to  the  United  States  was  called  in  question.  Mr. 
Justice  Field  said  with  reference  to  the  nature  of  the  pardoning 
power  of  the  President, 

"The  Constitution  provides  that  the  President  'shall  have  power 
to  grant  reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment.'^ 

"The  power  thus  conferred  is  unlimited,  with  the  exception 
stated.  It  extends  to  every  offense  known  to  the  law,  and  may  be 
exercised  at  any  time  after  its  commission,  either  before  legal 
proceedings  are  taken,  or  during  their  pendency,  or  after  convic- 
tion and  judgment.  This  power  of  th5  President  is  not  subject 
to  legislative  control.  Congress  can  neither  limit  the  effect  of  his 
pardon,  nor  exclude  from  its  exercise  any  class  of  offenders.  The 
benign  prerogative  of  mercy  imposed  in  him  cannot  be  fettered 
by  any  legislative  restrictions. 

"Such  being  the  case,  the  inquiry  arises  as  to  the  effect  and 
operation  of  a  pardon,  and  on  this  point  all  the  authorities  concur. 
A  pardon  reaches  both  the  punishment  prescribed  for  the  offense 
and  the  guilt  of  the  offender;  and  when  the  pardon  is  full,  it  re- 
leases the  punishment  and  blots  out  of  existence  the  guilt,  so  that 
in  the  eye  of  the  law  the  offender  is  as  innocent  as  if  he  had 
never  committed  the  offense.  If  granted  before  conviction,  it  pre- 
vents any  of  the  penalties  and  disabilities  consequent  upon  con- 
viction from  attaching;  if  granted  after  conviction,  it  removes 
the  penalties  and  disabilities,  and  restores  him  to  all  his  civil 
rights;  it  makes  him,  as  it  were,  a  new  man,  and  gives  him  a  new 
credit  and  capacity. 

"There  is  only  this  limitation  to  its  operation:   it  does  not  re- 

1  Article  II,  §  2. 
324 


IN  RE  NEAGLE.  325 

store  offices  forfeited,  or  property  or  interests  vested  in  others  in 
consequence  of  the  conviction  and  judgment.- 

"The  pardon  produced  by  the  petition  is  a  full  pardon  'for 
all  offenses  by  him  committed,  arising  from  participation,  direct  or 
implied,  in  the  Kebellion,'  and  is  subject  to  certain  conditions 
which  have  been  complied  with.  The  effect  of  this  pardon  is  to 
relieve  the  petitioner  from  all  penalties  and  disabilities  attached 
to  the  offense  of  treason,  committed  by  his  participation  in  the 
Eebellion.  So  far  as  that  offense  is  concerned,  he  is  thus  placed 
beyond  the  reach  of  punishment  of  any  kind.  But  to  exclude 
him,  by  reason  of  that  offense,  from  continuing  in  the  enjoyment 
of  a  previously  acquired  right,  is  to  enforce  a  punishment  for  that 
offense  notwithstanding  the  pardon.  If  such  exclusion  can  be 
effected. by  the  exaction  of  an  expurgatory  oath  covering  the  of- 
fense, the  pardon  may  be  avoided,  and  that  accomplished  indi- 
rectly which  cannot  be  reached  by  direct  legislation.  It  is  not 
within  the  constitutional  power  of  Congress  thus  to  inflict  pun- 
ishment beyond  the  reach  of  executive  clemency.  From  the  pe- 
titioner, therefore,  the  oath  required  by  the  act  of  January  24th, 
1865,  could  not  be  exacted,  even  if  that  act  were  not  subject  to 
any  other  objection  than  the  one  thus  stated.^' 


In   be   NEAGLE. 
135  U.   S.,  1.    Decided  1890. 

Mr.  Justice  Miller,  on  behalf  of  the  court,  stated  the  case  as . 
follows: — 

This  was  an  appeal  by  Cunningham,  sheriff  of  the  county  of 
San  Joaquin,  in  the  State  of  California,  from  a  judgment  of  the 
Circuit  Court  of  the  United  States  for  the  Northern  District  of 
California,  discharging  David  Neagle  from  the  custody  of  said 
sheriff,  who  held  him  a  prisoner  on  a  charge  of  murder. 

On  the  16th  day  of  August,  1889,  there  was  presented  to  Judge 
Sawyer,  the  Circuit  Judge  of  the  United  States  for  the  Ninth  Cir- 
cuit, embracing  the  Northern  District  of  California,  a  petition 
signed  David  Neagle,  deputy  United  Sta'tes  marshal,  by  A.  L. 
Farrish  on  his  behalf.  This  petition  represented  that  the  said 
Farrish  was  a  deputy  marshal  duly  appointed  for  the  Northern 

24  Blackstone's  Commentaries,  Pardon;  Hawkins,  book  2,  c.  37, 
402;    6    Bacon's    Abridgment,  tit     §§  34  and  54. 


336  CASES  ON  CONSTITUTIONAL  LAW. 

District  of  California  by  J.  C.  Franks,  who  was  the  marshal  of  that 
district.  It  further  alleged  that  David  Xeagle  was,  at  the  time  of 
the  occurrences  recited  in  the  petition  and  at  the  time  of  filing  it, 
a  duly  appointed  and  acting  deputy  United  States  marshal  for  the 
same  district.  It  then  proceeded  to  state  that  said  Neagle  was 
imprisoned,  confined,  and  restrained  of  his  liberty  in  the  county 
jail  in  San  Joaquin  County,  in  the  State  of  California,  by  Thomas 
Cunningham,  sheriff  of  said  county,  upon  a  charge  of  murder, 
under  a  warrant  of  arrest,  a  copy  of  which  was  annexed  to  the 
petition.'    The  warrant  was  as  follows: — 

"In  the  Justice's  Court  of  Stockton  Township. 

"State  of  California,  | 

quin,    j 


County  of  San  Joaquin, 


"The  People  of  the  State  of  California  to  any  sheriff,  constable, 
marshal,  or  policeman  of  said  State  or  of  the  county  of  San 
Joaquin: 

"Information  on  oath  having  been  this  day  laid  before  me  by 
Sarah  A.  Terry  that  the  crime  of  murder,  a  felony,  has  been  com- 
mitted within  said  county  of  San  Joaquin  on  the  14th  day  of  Au- 
gust, A.  D.  1889,  in  this,  that  one  David  S.  Terry,  a  human  being 
then  and  there  being,  was  wilfully,  unlawfully,  feloniously,  and 
with  malice  aforethought  shot,  killed,  and  murdered,  and  accus- 
ing Stephen  J.  Field  and  David  Neagle  thereof:  You  are  there- 
fore commanded  forthwith  to  arrest  the  above-named  Stephen  J. 
Field^  and  David  Neagle  and  bring  them  before  me,  at  my  office, 
in  the  city  of  Stockton,  or,  in  case  of  my  absence  or  inability  to 
act,  before  the  nearest  and  most  accessible  magistrate  in  the 
county. 

"Dated  at  Stockton  this  14th  day  of  August,  a.  d.  1889. 

"H.  V.  J.  Swain, 
"Justice  of  the  Peace. 

3  The  Governor  of  California,  on  burning  disgrace  to  the  State  un- 
learning that  a  warrant  had  been  less  disavowed."  The  Attorney- 
issued  for  the  arrest  of  Mr.  Justice  General  as  promptly  responded  by 
Field,  promptly  wrote  to  the  At-  advising  the  District  Attorney  that 
torney-General  of  the  State,  urg-  there  was  "no  evidence  to  impli- 
ing  "the  propriety  of  at  once  in-  cate  Justice  Field  in  said  shoot- 
structing  the  District  Attorney  of  ing,"  and  that  "public  justice  de- 
San  Joaquin  County  to  dismiss  the  mands  that  the  charge  against  him 
unwarranted  proceeding  against  be  dismissed,"  which  was  accord- 
him,"  as  his  arrest  "would  be  a  ingly  done. 


IN  RE  NEAGLE.  327 

"The  defendant,  David  Xeagle,  having  been  brought  before  me 
on  this  warrant,  is  committed  for  examination  to  the  sheriff  of 
San  Joaquin  County,  California. 

"Dated  August  15,  1889.  H.  V.  J.  Swain, 

"Justice  of  the  Peace." 

The  petition  then  recited  the  circumstances  of  a  rencontre 
between  said  Neagle  and  David  S.  Terry,  in  which  the  latter  was 
instantly  killed  by  two  shots  from  a  revolver  in  the  hands  of 
the  former.  The  circumstances  of  this  encounter  and  of  what  led 
to  it  will  be  considered  with  more  particularity  hereafter.  The 
main  allegation  of  this  petition  was  that  Neagle,  as  United  States 
deputy  marshal,  acting  under  the  orders  of  Marshal  Franks,  and 
in  pursuance  of  instructions  from  the  Attorney-General  of  the 
United  States,  had,  in  consequence  of  an  anticipated  attempt  at 
violence  on  the  part  of  Terry  against  the  Honorable  Stephen  J. 
Field,  a  justice  of  the  Supreme  Court  of  the  United  States,  been 
in  attendance  upon  said  justice,  and  was  sitting  by  his  side  at  a 
breakfast  table  when  a  murderous  assault  was  made  by  Terry  on 
Judge  Field,  and  in  defense  of  the  life  of  the  judge  the  homicide 
was  committed  for  which  Neagle  was  held  by  Cunningham.  The 
allegation  was  very  distinct  that  Justice  Field  was  engaged  in  the 
discharge  of  his  duties  as  circuit  justice  of  the  United  States  for 
that  circuit,  having  held  court  at  Los  Angeles,  one  of  the  places 
at  which  the  court  is  by  law  held,  and,  having  left  that  court,  was 
on  his  way  to  San  Francisco  for  the  purpose  of  holding  the  Circuit 
Court  at  that  place.  The  allegation  was  also  very  full  that  Neagle 
was  directed  by  Marshal  Franks  to  accompany  him  for  the  purpose 
of  protecting  him,  and  that  these  orders  of  Franks  were  given  in  an- 
ticipation of  the  assault  which  actually  occurred.  It  was  also  stated, 
in  more  general  terms,  that  Marshal  Neagle,  in  killing  Terry 
under  the  circumstances,  was  in  the  discharge  of  his  duty  as  an 
officer  of  the  United  States,  and  was  not,  therefore,  guilty  of 
a  murder,  and  that  his  imprisonment  under  the  warrant  held 
by  Sheriff  Cunningham  was  in  violation  of  the  laws  and  Consti- 
tution of  the  United  States,  and  that  he  was  in  custody  for  an 
act  done  in  pursuance  of  the  laws  of  the  United  States.  This 
petition  being  sworn  to  by  Farrish,  and  presented  to  Judge  Saw- 
yer, he  made  the  following  order: 

"Let  a  writ  of  habeas  corpus  issue  in  pursuance  of  the  prayer 
of  the  within  petition,  returnable  before  the  United  States  Cir- 
cuit Court  for  the  Northern  District  of  California. 

"Sawyer,  Circuit  Judge." 


328  CASES  ON  CONSTITUTIONAL   LAW. 

The  writ  was  accordingly  issued  and  delivered  to  Cunningham, 
who  made  the  following  return: — 

"County  of  San  Joaquin,  State  of  California, 
"Sheriff's  Office. 
"To  the  honorable  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  California: 
"I  hereby  certify  and  return  that  before  the  coming  to  me  of 
the  annexed  writ  of  habeas  corpus  the  said  David  Neagle  was 
committed  to  my  custody,  and  is  detained  by  me  by  virtue  of  a 
warrant  issued  out  of  the  justice's  court  of  Stockton  township. 
State  of  California,  county  of  San  Joaquin,  and  by  the  indorse- 
ment made  upon  said  warrant.    Copy  of  said  warrant  and  indorse- 
ment is  annexed  hereto  and  made  a  part  of  this  return.     Never- 
theless, I  have  the  body  of  the  said  David  Neagle  before  the  hon- 
orable court,  as  I  am  in  the  said  writ  commanded. 
"August  17,  1889.  Thomas  Cunningham, 

"Sheriff  San  Joaquin  County,  California." 

Various  pleadings  and  amended  pleadings  were  made  which  do 
not  tend  much  to  the  elucidation  of  the  matter  before  us.  Cun- 
ningham filed  a  demurrer  to  the  petition  for  the  writ  of  habeas 
corpus,  and  Neagle  filed  a  traverse  to  the  return  of  the  sheriff, 
which  was  accompanied  by  exhibits,  the  substance  of  which  will 
be  hereafter  considered  when  the  case  comes  to  be  examined  upon 
its  facts. 

The  hearing  in  the  Circuit  Court  was  had  before  Circuit  Judge 
Sawyer  and  District  Judge  Sabin.  The  sheriff,  Cunningham,  was 
represented  by  G.  A.  Johnson,  Attorney-General  of  the  State  of 
California,  and  other  counsel.  A  large  body  of  testimony,  docu- 
mentary and  otherwise,  was  submitted  to  the  court,  on  which, 
after  a  full  consideration  of  the  subject,  the  court  made  the 
following  order: 

"In  the  Matter  of  David  Xeagle,  on  habeas  corpus. 

"In  the  above-entitled  matter,  the  court  having  heard  the  tes- 
timony introduced  on  behalf  of  the  petitioner,  none  having  been 
offered  for  the  respondent,  and  also  the  arguments  of  the  counsel 
for  petitioner  and  respondent,  and  it  appearing  to  the  court  that 
the  allegations  of  the  petitioner  in  his  amended  answer  or  traverse 
to  the  return  of  the  sheriff  of  San  Joaquin  County,  respondent 
herein,  are  true,  and  that  the  prisoner  is  in  custody  for  an  act 
done  in  pursuance  of  a  law  of  the  United  States,  and  in  custody 


IN  RE  NEAGLE.  329 

in  violation  of  the  Constitution  and  laws  of  the  United  States,  it 
is  therefore  ordered  that  petitioner  be,  and  he  is  hereby,  discharged 
from  custody." 

From  that  order  an  appeal  was  allowed  which  brought  the  case 
to  this  court,  acompanied  by  a  voluminous  record  of  all  the 
matters  which  were  before  the  court  on  the  hearing.     .     .     .     ■ 

Mr.  Justice  Millee,  after  stating  the  case  as  above,  delivered 
the  opinion  of  the  court. 

If  it  be  true,  as  stated  in  the  order  of  the  court  discharging 
the  prisoner,  that  he  was  held  "in  custody  for  an  act  done  in 
pursuance  of  a  law  of  the  United  States,  and  in  custody  in  viola- 
tion of  the  Constitution  and  laws  of  the  United  States,"  there 
does  not  seem  to  be  any  doubt  that,  under  the  statute  on  that 
subject,  he  was  properly  discharged  by  the  Circuit  Court.     .     .     . 

[Here  follows  a  history  of  tlje  events  leading  up  to  the  death 
of  Terry.] 

These  are  the  material  circumstances  produced  in  evidence  be- 
fore the  Circuit  Court  on  the  hearing  of  this  habeas  corpus  case. 
It  is  but  a  short  sketch  of  a  history  which  is  given  in  over  five 
hundred  pages  in  the  record,  but  we  think  it  is  sufficient  to  enable 
us  to  apply  the  law  of  the  case  to  the  question  before  us.  With- 
out a  more  minute  discussion  of  this  testimony,  it  produces  upon 
us  the  conviction  of  a  settled  purpose  on  the  part  of  Terry  and 
his  wife,  amounting  to  a  conspiracy,  to  murder  Justice  Field.  And 
we  are  quite  sure  that  if  N^eagle  had  been  merely  a  brother  or  a 
friend  of  Judge  Field,  traveling  with  him,  and  aware  of  all  the  pre- 
vious relations  of  Terry  to  the  judge, — as  he  was, — of  his  bitter 
animosity,  his  declared  purpose  to  have  revenge  even  to  the  point 
of  killing  him,  he  would  have  been  justified  in  what  he  did  in 
defense  of  Mr.  Justice  Field's  life,  and  possibly  of  his  own. 

But  such  a  justification  would  be  a  proper  subject  for  consid- 
eration on  a  trial  of  the  case  for  murder  in  the  courts  of  the  State 
of  California,  and  there  exists  no  authority  in  the  courts  of  the 
United  States  to  discharge  the  prisoner  while  held  in  custody  by 
the  State  authorities  for  this  offense,  unless  there  be  found  in  aid 
of  the  defense  of  the  prisoner  some  element  of  power  and  authority 
asserted  under  the  government  of  the  United  States. 

This  element  is  said  to  be  found  in  the  facts  that  Mr.  Justice 
Field,  when  attacked,  was  in  the  immediate  discharge  of  his  duty 
as  judge  of  the  Circuit  Courts  of  the  United  States  within  Cali- 
fornia; that  the  assault  upon  him  grew  out  of  the  animosity  of 
Terry  and  wife,  arising  out  of  the  previous  discharge  of  his  duty 


330  CASES  ON   CONSTITUTIONAL   LAW. 

as  circuit  justice  in  the  case  for  which  they  were  committed  for 
contempt  of  court;  and  that  the  deputy  marshal  of  the  United 
States,  who  killed  Terry  in  defense  of  Field's  life,  was  charged 
with  a  duty  under  the  law  of  the  United  States  to  protect  Field 
from  'the  violence  which  Terry  was  inflicting,  and  which  was  in- 
tended to  lead  to  Field's  death. 

To  the  inquiry  whether  this  proposition  is  sustained  by  law  and 
the  facts  which  we  have  recited,  we  now  address  ourselves.     .     .     . 

We  have  no  doubt  that  Mr.  Justice  Field  when  attacked  by 
Terry  was  engaged  in  the  discharge  of  his  duties  as  Circuit  Justice 
of  the  Ninth  Circuit,  and  was  entitled  to  all  the  protection  under 
those  circumstances  which  the  law  could  give  him. 

It  is  urged,  however,  that  there  exists  no  statute  authorizing 
any  such  protection  as  that  which.  Neagle  was  instructed  to  give 
Judge  Field  in  the  present  case,  and  indeed  no  protection  what- 
ever against  a  vindictive  or  malicious  assault  growing  out  of  the 
faithful  discharge  of  his  official  duties,  and  that  the  language 
of  section  753  of  the  Revised  Statutes,  that  the  party  seeking  the 
benefit  of  the  writ  of  habeas  corpus  must  in  this  connection  show 
that  he  is  "in  custody  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  Sates,"  makes  it  necessary  that  upon  this 
occasion  it  should  be  shown  that  the  act  for  which  Neagle  is  im- 
prisoned was  done  by  virtue  of  an  act  of  Congress.  It  is  not  sup- 
posed that  any  special  act  of  Congress  exists  which  authorizes  the 
marshals  or  deputy  marshals  of  the  United  States  in  express  terms 
to  accompany  the  judges  of  the  Supreme  Court  through  their 
circuits,  and  act  as  a  body-guard  to  them,  to  defend  them  against 
malicious  assaults  against  their  persons.  But  we  are  of  opinion 
that  this  view  of  the  statute  is  an  unwarranted  restriction  of  the 
meaning  of  a  law  designed  to  extend  in  a  liberal  manner  the  bene- 
fit of  the  writ  of  habeas  corpus  to  persons  imprisoned  for  the 
performance  of  their  duty.  And  we  are  satisfied  that  if  it  was  the 
duty  of  Neagle,  under  the  circumstances,  a  duty  which  could  only 
arise  under  the  laws  of  the  United  States,  to  defend  Mr.  Justice 
Field  from  a  murderous  attack  upon  him,  he  brings  himself  within 
the  meaning  of  the  section  we  have  recited.  This  view  of  the 
subject  is  confirmed  by  the  alternative  provision,  that  he  must  be 
in  custody  "for  an  act  done  or  omitted  in  pursuance  of  a  law  of 
the  United  States  or  of  an  order,  process,  or  decree  of  a  court 
or  judge  thereof,  or  is  in  custody  in  violation  of  the  Constitution 
or  of  a  law  or  treaty  of  the  United  States." 

In  the  view  we  take  of  the  Constitution  of  the  United  States, 
any  obligation  fairly  and  properly  inferrible   from  that  instru- 


IN  RE  NEAGLB.  331 

ment,  or  any  duty  of  the  marshal  to  be  derived  from  the  general 
scope  of  his  duties  under  the  laws  of  the  United  States,  is  "a  law" 
within  the  meaning  of  this  phrase.  It  would  be,  a  great  reproach 
to  the  system  of  government  of  the  United  States,  declared  to  be 
within  its  sphere  sovereign  and  supreme,  if  there  is  to  be  found 
within  the  domain  of  its  powers  no  means  of  protecting  the  judges, 
in  the  conscientious  and  faithful  discharge  of  their  duties,  from 
the  malice  and  hatred  of  those  upon  whom  their  judgments  may 
operate  unfavorably. 

It  has  in  modern  times  become  apparent  that  the  physical  health 
of  the  community  is  more  efficiently  promoted  by  hygienic  and 
preventive  means,  than  by  the  skill  which  is  applied  to  the  cure 
of  disease  after  it  has  become  fully  developed.  So  also  the  law, 
which  is  intended  to  prevent  crime,  in  its  general  spread  among 
the  community,  by  regulations,  police  organization,  and  otherwise, 
which  are  adapted  for  the  protection  of  the  lives  and  property  of 
citizens,  for  the  dispersion  of  mobs,  for  the  arrest  of  thieves  and 
assassins,  for  the  watch  which  is  kept  over  the  community,  as  well 
as  over  this  class  of  people,  is  more  efficient  than  punishment 
of  crimes  after  they  have  been  committed. 

If  a  person  in  the  situation  of  Judge  Field  could  have  no  other 
guarantee  of  his  personal  safety,  while  engaged  in  the  conscien- 
tious discharge  of  a  disagreeable  duty,  than  the  fact  that  if  he 
was  murdered  his  murderer  would  be  subject  to  the  laws  of  a 
State  and  by  those  laws  could  be  punished,  the  security  would  be 
very  insufficient.  The  plan  which  Terry  and  wife  had  in  mind 
of  insulting  him  and  assaulting  him  and  drawing  him  into  a  de- 
fensive physical  contest,  in  the  course  of  which  they  would  slay 
him,  shows  the  little  value  of  such  remedies.  We  do  not  believe 
that  the  government  of  the  United  States  is  thus  inefficient,  or 
that  its  Constitution  and  laws  have  left  the  high  officers  of  the 
government  so  defenseless  and  unprotected.  .  .  .  [Here  are 
given  citations  from  ex  parte  Siebold,  100  U.  S.,  371,  394,  and 
from  Tennessee  v.  Davis,  100  U.  S.,  257,  262.] 

Where,  then,  are  we  to  look  for  the  protection  which  we  have 
shown  Judge  Field  was  entitled  to  when  engaged  in  the  discharge 
of  his  official  duties?  Not  to  the  courts  of  the  United  States; 
because,  as  has  been  more  than  once  said  in  this  court,  in  the 
division  of  the  powers  of  government  between  the  three  great  de- 
partments, executive,  legislative  and  judicial,  the  judicial  is  the 
weakest  for  the  purposes  of  self-protection  and  for  the  enforce- 
ment of  the  powers  which  it  exercises.  The  ministerial  officers 
through  whom  its  commands  must  be  executed  are  marshals  of 


'332  CASES  ON   CONSTITUTIONAL  LAW. 

the  United  States,  and  belong  emphatically  to  the  executive  de- 
partment of  the  government.  They  are  appointed  by  the  Presi- 
dent, with  the  a4viee  and  consent  of  the  Senate.  They  are  remov- 
able from  office  at  his  pleasure.  They  are  subjected  by  act  of 
Congress  to  the  supervision  and  control  of  the  Department  of 
Justice,  in  the  hands  of  one  of  the  cabinet  officers  of  the  Presi- 
dent, and  their  compensation  is  provided  by  acts  of  Congress. 
The  same  may  be  said  of  the  district  attorneys  of  the  United 
States,  who  prosecute  and  defend  the  claims  of  the  government  in 
the  courts. 

The  legislative  branch  of  the  government  can  only  protect 
the  judicial  officers  by  the  enactment  of  laws  for  that  purpose, 
and  the  argument  we  are  now  combating  assumes  that  no  such 
law  has  been  passed  by  Congress. 

If  we  turn  to  the  executive  department  of  the  government,  we 
find  a  very  different  condition  of  affairs.  The  Constitution,  sec- 
tion 3,  Article  2,  declares  that  the  President  "shall  take  care  that 
the  laws  be  faithfully  executed,"  and  he  is  provided  with  the  means 
of  fulfilling  this  obligation  by  his  authority  to  commission  all 
the  officers  of  the  United  States,  and,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  appoint  the  most  important  of  them 
and  to  fill  vacancies.  He  is  declared  to  be  commander-in-chief 
of  the  army  and  navy  of  the  United  States.  The  duties  which  are 
thus  imposed  upon  him  he  is  further  enabled  to  perform  by  the 
recognition  in  the  Constitution,  and  the  creation  by  acts  of  Con- 
gress, of  executive  departments,  which  have  varied  in  number 
from  four  to  five  to  seven  or  eight,  the  heads  of  which  are  famil- 
iarly called  cabinet  ministers.  These  aid  him  in  the  performance 
of  the  great  duties  of  his  office,  and  represent  him  in  a  thousand 
acts  to  which  it  can  hardly  be  supposed  his  personal  attention  is 
called,  and  thus  he  is  enabled  to  fulfill  the  duty  of  his  great  de- 
partment, expressed  in  the  phrase  that  'Tie  shall  take  care  that 
the  laws  be  faithfully  executed." 

Is  this  duty  limited  to  the  enforcement  of  acts  of  Congress  or 
of  treaties  of  the  United  States  according  to  their  express  terms, 
or  does  it  include  the  rights,  duties  and  obligations  growing  out 
of  the  Constitution  itself,  our  international  relations,  and  all  the 
protection  implied  by  the  nature  of  the  government  under  the 
Constitution? 

One  of  the  most  remarkable  episodes  in  the  history  of  our  for- 
eign relations,  and  which  has  become  an  attractive  historical  inci- 
dentjis  the  case  of  Martin  Koszta.a  native  of  Hungary, who, though 
not  fully  a  naturalized  citizen  of  the  United  States,  had  in  due  form 
of  law  made  his  declaration  of  intention  to  become  a  citizen.  While 


IN  RE  NBAGLE.  333 

in  Smyrna  he  was  seized  by  command  of  the  Austrian  consul- 
general  at  that  place,  and  carried  on  board  the  Hussar,  an  Aus- 
trian vessel,  where  he  was  held  in  close  confinement.  Captaini 
Ingraham,  in  command  of  the  American  sloop-of-war,  St.  Louis, 
arriving  in  port  at  that  critical  period,  and  ascertaining  that 
Koszta  had  with  him  his  naturalization  papers,  demanded  his  sur- 
render to  him,  and  was  compelled  to  train  his  guns  upon  the  Aus- 
trian vessel  before  his  demands  were  complied  with.  It  was, 
however,  to  prevent  bloodshed,  agreed  that  Koszta  should  be 
placed  in  the  hands  of  the  French  consul  subject  to  the  result  of 
diplomatic  negotiations  between  Austria  and  the  United  States. 
The  celebrated  correspondence  between  Mr.  Marcy,  Secretary  of 
State,  and  Chevalier  Hiilsemann,  the  Austrian  minister  at  Wash- 
ington, which  arose  out  of  this  affair  and  resulted  in  the  release 
and  restoration  to  liberty  of  Koszta,  attracted  a  great  deal  of 
public  attention,  and  the  position  assumed  by  Mr.  Marcy  met  the 
approval  of  the  country  and  of  Congress,  who  voted  a  gold  medal 
to  Captain  Ingraham  for  his  conduct  in  the  affair.  Upon  what 
act  of  Congress  then  existing  can  any  one  lay  his  finger  in  sup- 
port of  the  action  of  our  government  in  this  matter? 

So,  if  the  President  or  the  Postmaster-General  is  advised  that 
the  mails  of  the  United  States,  possibly  carrying  treasure,  are  lia- 
ble to  be  robbed  and  the  mail  carriers  assaulted  and  murdered  in 
any  particular  region  of  country,  who  can  doubt  the  authority  of 
the  President  or  of  one  of  the  executive  departments  under  him 
to  make  an  order  for  the  protection  of  the  mail  and  of  the  per- 
sons and  lives  of  its  carriers,  by  doing  exactly  what  was  done  in 
the  case  of  Mr.  Justice  Field,  namely,  providing  a  sufficient  guard, 
whether  it  be  by  soldiers  of  the  army  or  by  marshals  of  the  United 
States,  with  a  posse  comitatus  properly  armed  and  equipped,  to 
secure  the  safe  performance  of  the  duty  of  carrying  the  mail 
wherever  it  may  be  intended  to  go? 

The  United  States  is  the  owner  of  millions  of  acres  of  valuable 
public  land,  and  has  been  the  owner  of  much  more  which  it  has 
sold.  Some  of  these  lands  owe  a  large  part  of  their  value  to  the 
forests  which  grow  upon  them.  These  forests  are  liable  to  depre- 
dations by  people  living  in  the  neighborhood,  known  as  timber 
thieves,  who  make  a  living  by  cutting  and  selling  such  timber, 
and  who  are  trespassers.  But  until  quite  recently,  even  if  there 
be  one  now,  there  was  no  statute  authorizing  any  preventive 
measures  for  the  protection  of  this  valuable  public  property.  Has 
the  President  no  authority  to  place  guards  upon  the  public  terri- 
tory to  protect  its  timber?  No  authority  to  seize  the  timber  when 


334  CASES  ON  CONSTITUTIONAL  LAW. 

cut  and  found  upon  the  ground?  Has  he  no  power  to  take  any 
measures  to  protect  this  vast  domain?  Fortunately  we  find  this 
question  answered  by  this  court  in  the  case  of  Wells  v.  Nickles, 
104  U.  S.,  444.  That  was  a  case  in  which  a  class  of  men  appointed 
by  local  land  officers,  under  instructions  from  the  Secretary  of 
the  Interior,  having  found  a  large  quantity  of  this  timber  cut 
down  from  the  forests  of  the  United  States  and  lying  where  it 
was  cut,  seized  it.  The  question  of  the  title  to  this  property  com- 
ing in  controversy  between  Wells  and  Nickles,  it  became  essential 
to  inquire  into  the  authority  of  these  timber  agents  of  the  govern- 
ment thus  to  seize  the  timber  cut  by  trespassers  on  its  lands.  The 
court  said:  "The  effort  we  have  made  to  ascertain  and  fix  the 
authority  of  these  timber  agents  by  any  positive  provision  of  law 
has  been  unsuccessful."  But  the  court,  notwithstanding  there  was 
no  special  statute  for  it,  held  that  the  Department  of  the  Interior, 
acting  under  the  idea  of  protecting  from  depredation  timber  on 
the  lands  of  the  government,  had  gradually  come  to  assert  the 
right  to  seize  what  is  cut  and  taken  away  from  them  wherever  it 
can  be  traced,  and  in  aid  of  this  the  registers  and  receivers  of  the 
Land  Office  had,  by  instructions  from  the  Secretary  of  the  Inte- 
rior, been  constituted  agents  of  the  United  States  for  these  pur- 
poses, with  power  to  appoint  special  agents  under  themselves.  And 
the  court  upheld  the  authority  of  the  Secretary  of  the  Interior 
to  make  these  rules  and  regulations  for  the  protection  of  the  public 
lands. 

One  of  the  cases  in  this  court  in  which  this  question  was  pre- 
sented in  the  most  imposing  form  is  that  of  United  States  v.  San 
Jacinto  Tin  Company,  125  U.  S.,  273,  279,  280.  In  this  case,  a 
suit  was  brought  in  the  name  of  the  United  States,  by  order  of 
the  Attorney  General,  to  set  aside  a  patent  which  had  been  issued 
for  a  large  body  of  valuable  land,  on  the  ground  that  it  was  ob- 
tained from  the  government  by  fraud  and  deceit  practiced  upon 
its  officers.  A  preliminary  question  was  raised  by  counsel  for  the 
defendant,  which  was  earnestly  insisted  upon,  as  to  the  right  of 
the  Attorney  General  or  any  other  officer  of  the  government  to 
institute  such  a  suit  in  the  absence  of  any  act  of  Congress  author- 
izing it.  It  was  conceded  that  there  was  no  express  authority 
given  to  the  Attorney  General  to  institute  that  particular  suit  or 
any  suit  of  that  class.  The  question  was  one  of  very  great  interest, 
and  was  very  ably  argued  both  in  the  court  below  and  in  this 
court.  The  response  of  this  court  to  that  suggestion  conceded 
that  in  the  acts  of  Congress  establishing  the  Department  of  Jus- 
tice and  defining  the  duties  of  the  Attorney  General  there  was 


IN  RE  NEAGLE.  335 

HO  such  express  authority,  and  it  was  said  that  there  was  also  no 
express  authority  to  him  to  bring  suits  against  debtors  of  the 
government  upon  bonds,  or  to  begin  criminal  prosecutions,  or  to 
institute  criminal  proceedings  in  any  of  the  cases  in  which  the 
United  States  was  plaintiff,  yet  he  was  invested  with  the  gen- 
eral superintendence  of  all  such  suits.  It  was  further  said:  "If 
the  United  States,  in  any  particular  case,  has  a  Just  cause  for  call- 
ing upon  the  judiciary  of  the  country,  in  any  of  its  courts,  for 
relief  by  setting  aside  or  annulling  any  of  its  contracts,  its  obli- 
gations, or  its  most  solemn  instruments,  the  question  of  the  appeal 
to  the  judicial  tribunals  of  the  country  must  primarily  be  decided 
by  the  Attorney  General  of  the  United  States.  That  such  a  power 
should  exist  somewhere,  and  that  the  United  States  should  not 
be  more  helpless  in  relieving  itself  of  frauds,  impostures,  and  de- 
ceptions, than  the  private  individual  is  hardly  open  to  argument. 
.  .  .  There  must,  then,  be  an  officer  or  officers  of  the  govern- 
ment to  determine  when  the  United  States  shall  sue,  to  decide 
for  what  it  shall  sue,  and  to  be  responsible  that  such  suits  shall  be 
brought  in  appropriate  cases.  The  attorneys  of  the  United  States 
in  every  judicial  district  are  officers  of  this  character,  and  they, 
are  by  statute  under  the  immediate  supervision  and  control  of  the 
Attorney-General.  How,  then,  can  it  be  argued  that  if  the  United 
States  has  been  deceived,  entrapped,  or  defrauded,  into  the  mak- 
ing, under  the  forms  of  law,  of  an  instrument  which  injuriously 
affects  its  rights  of  property,  or  other  rights,  it  cannot  bring  a 
suit  to  avoid  the  effect  of  such  instrument,  thus  fraudulently 
obtained,  without  a  special  act  of  Congress  in  each  case,  or  with- 
out some  special  authority  applicable  to  this  class  of  cases?"  The 
same  question  was  raised  in  the  earlier  case  of  United  States  v. 
Hughes,  11  How.,  553,  and  decided  the  same  way. 

"We  cannot  doubt  the  power  of  the  President  to  take  measures 
for  the  protection  of  a  judge  of  one  of  the  courts  of  the  United 
States,  who,  while  in  the  discharge  of  the  duties  of  his  office,  is 
threatened  with  a  personal  attack  which  may  probably  result  in 
his  death,  and  we  think  it  clear  that  where  this  protection  is  to  be. 
afforded  through  the  civil  power,  the  Department  of  Justice  is  the 
proper  one  to  set  in  motion  the  necessary  means  of  protection. 
The  correspondence  already  recited  in  this  opinion  between  the 
marshal  of  the  Northern  District  of  California,  and  the  Attorney- 
General,  and  the  district  attorney  of  the  United  States  for  that 
district,  although  prescribing  no  very  specific  mode  of  affording 
this  protection  by  the  Attorney-General,  is  sufficient,  we  think, 
to  warrant  the  marshal  in  taking  the  steps  which  he  did  take,  in 


336  CASES   ON  CONSTITUTIONAL   LAW. 

making  the  provision  which  he  did  make,  for  the  protection  and 
defense  of  Mr.  Justice  Field. 

But  there  is  positive  law  investing  the  marshals  and  their  depu- 
ties with  powers  which  not  only  justify  what  Marshal  Neagle  did 
in  this  matter,  but  which  imposed  it  upon  him  as  a  duty.  In 
chapter  fourteen  of  the  Revised  Statutes  of  the  United  States, 
which  is  devoted  to  the  appointment  and  duties  of  the  district 
attorneys,  marshals,  and  clerks  of  the  courts  of  the  United  States, 
section  788  declares: 

"The  marshals  and  their  deputies  shall  have,  in  each  State,  the 
Bame  powers,  in  executing  the  laws  of  the  United  States,  as  the 
sheriffs  and  their  deputies  in  such  State  may  have,  by  law,  in 
executing  the  laws  thereof." 

If  therefore,  a  sheriff  of  the  State  of  California  was  authorized 
to  do  in  regard  to  the  laws  of  California  what  Neagle  did,  that  is, 
if  he  is  authorized  to  keep  the  peace,  to  protect  a  judge  from 
assault  and  murder,  then  Neagle  was  authorized  to  do  the  same 
thing  in  reference  to  the  laws  of  the  United  States.     .     .     . 

That  there  is  a  peace  of  the  United  States;  that  a  man  assaulting 
a  judge  of  the  United  States  while  in  the  discharge  of  his  duties 
violates  that  peace;  that  in  such  ease  the  marshal  of  the  United 
States  stands  in  the  same  relation  to  the  peace  of  the  United  States 
which  the  sheriff  of  the  county  does  to  the  peace  of  the  State  of 
California;  are  questions  too  clear  to  need  argument  to  prove 
them.  That  it  would  be  the  duty  of  a  sheriff,  if  one  had 
been  present  at  this  assault  by  Terry  upon  Judge  Field, 
to  prevent  this  breach  of  the  peace,  to  prevent  this 
assault,  to  prevent  the  murder  which  was  contemplated  by  it,  can- 
not be  doubted.  And  if,  in  performing  this  duty,  it  became  nec- 
essary for  the  protection  of  Judge  Field,  or  of  himself,  to  kill 
Terry,  in  a  case  where,  like  this,  it  was  evidently  a  question  of 
the  choice  of  who  should  be  killed,  the  assailant  and  violater  of 
the  law  and  disturber  of  the  peace,  or  the  unoffending  man  who 
■was  in  his  power,  there  can  be  no  question  of  the  authority  of  the 
sheriff  to  have  killed  Terry.  So  the  marshal  of  the  United  States, 
charged  with  the  duty  of  protecting  and  guarding  the  judge  of 
the  United  States  court  against- this  special  assault  upon  his  per- 
son and  his  life,  being  present  at  the  critical  moment,  when  prompt 
action  was  necessary,  found  it  to  be  his  duty,  a  duty  which  he  had 
no  liberty  to  refuse  to  perform,  to  take  the  steps  which  resulted 
in  Terry's  death.  This  duty  was  imposed  on  him  by  the  section 
of  the  Revised  Statutes  which  we  have  cited,  in  connection  with 
the  powers  conferred  by  the  State  of  California  upon  its  peace 


IN  RE  NEAGLE.  337 

officers,  which  become,  by  this  statute,  in  proper  cases,  transferred 
as  duties  to  the  marshals  of  the  United  States.     .     .     . 

The  result  at  which  we  have  arrived  upon  this  examination  is, 
that  in  the  protection  of  the  person  and  the  life  of  Mr.  Justice 
Field  while  in  the  discharge  of  his  official  duties,  Neagle  was  au- 
thorized to  resist  the  attack  of  Terry  upon  him;  that  Neagle  was 
correct  in  the  belief  that  without  prompt  action  on  his  part  the 
assault  of  Terry  upon  the  Judge  would  have  ended  in  the  death 
of  the  latter;  that  such  being  his  well-founded  belief,  he  was  jus- 
tified in  taking  the  life  of  Terry,  as  the  only  means  of  preventing 
the  death  of  the  man  who  was  intended  to  be  his  victim;  that  in 
taking  the  life  of  Terry,  under  the  circumstances,  he  was  acting 
under  the  authority  of  the  law  of  the  United  States,  and  was  jus- 
tified in  so  doing;  and  that  he  is  not  liable  to  answer  in  the 
courts  of  California  on  account  of  his  part  in  that  transaction. 

We  therefore  affirm  the  judgment  of  the  Circuit  Court  authoriz- 
ing his  discharge  from  the  custody  of  the  sheriff  of  San  Joaquin 
County.  • 

[Mr.  Justice  Lamar  delivered  a  dissenting  opinion  in  which 
Chief  Justice  Fuller  concurred.] 

Note. — The  recent  case  of  Parsons  v.  United  States,  167  U.  S., 
324,  (1897),  discusses  the  President's  power  of  removal,  but  does 
not  determine  the  constitutional  question  involved.  The  opinion 
is  valuable  for  its  statement  of  the  legislative,  executive,  and  judi- 
cial history  of  the  question. 


VIII.    WAR.-MARTIAL  LAW. 


MAKTIN  V.  MOTT. 
12  Wheaton,  19.    Decided  1827. 
The  case  is  stated  in  the  opinion  of  the  court.     .    .    . 

Story,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  judgment  of  the  court  for  the  trial 
of  impeachments  and  the  correction  of  errors  of  the  State  of  New 
York,  being  the  highest  court  of  that  State,  and  is  brought  here 
in  virtue  of  the  25th  section  of  the  Judiciary  Act  of  1789,^  c.  20. 
The  original*  action  was  a  replevin  for  certain  goods  and  chattels, 
to  which  the  original  defendant  put  in  an  avowry,  and  to  that 
avowry  there  was  a  demurrer,  assigning  nineteen  distinct  and 
special  causes  of  demurrer.  Upon  a  joinder  in  demurrer,  the  su- 
preme court  of  the  State  gave  judgment  against  the  avowant;  and 
that  judgment  was  affirmed  by  the  high  court  to  which  the  pres- 
ent WTit  of  error  is  addressed. 

The  avowry,  in  substance,  asserts  a  justification  of  the  taking 
of  the  goods  and  chattels  to  satisfy  a  fine  and  forfeiture  imposed 
upon  the  original  plaintiff  by  a  court-martial,  for  a  failure  to  enter 
the  service  of  the  United  States  as  a  militiaman,  when  thereto 
required  by  the  President  of  the  United  States,  in  pursuance  of 
the  act  of  the  28th  of  February,,  1795.  It  is  argued  that  this 
avowry  is  defective,  both  in  substance  and  form;  and  it  will  be 
our  business  to  discuss  the  most  material  of  these  objections;  and 
as  to  others,  of  which  no  particular  notice  is  taken,  it  is  to  be 
understood  that  the  court  are  of  opinion  that  they  are  either 
unfounded  in  fact  or  in  law,  and  do  not  require  any  separate 
examination. 

For  the  more  clear  and  exact  consideration  of  this  subject,  it 
may  be  necessary  to  refer  to  the  constitution  of  the  United  States, 
and  some  of  the  provisions  of  the  act  of  1795.  The  constitution 
declares  that  congress  shall  have  power  "to  provide  for  calling 
forth  the  militia,  to  execute  the  laws  of  the  Union,  suppress  in- 
surrections, and  repel  invasions;"  and  also  "to  pro^dde  for  organ- 
1 1  Stats,  at  Large,  85. 
338 


MARTIN  V.  MOTT.  339 

izing,  arming,  and  disciplining  the  militia,  and  for  governing  such. 
part  of  them  as  may  be  employed  in  the  service  of  the  United 
States."  In  pursuance  of  this  authority,  the  act  of  1795  has  pro- 
vided, "that  whenever  the  United  States  shall  be  invaded,  or  be 
in  imminent  danger  of  invasion  from  any  foreign  nation  or  Indian 
tribe,  it  shall  be  lawful  for  the  President  of  the  United  States  to 
call  forth  such  number  of  the  militia  of  the  State  or  States  most 
convenient  to  the  place  of  danger,  or  scene  of  action,  as  he  may 
judge  necessary  to  repel  such  invasion,  and  to  issue  his  order  for 
that  purpose  to  such  officer  or  officers  of  the  militia  as  he  shall 
think  proper."  And  like  provisions  are  made  for  the  other  cases 
stated  in  the  constitution.  It  has  not  been  denied  here  that  the 
act  of  1795  is  within  the  constitutional  authority  of  congress,  or 
that  congress  may  not  lawfully  provide  for  cases  of  imminent 
danger  of  invasion,  as  well  as  for  cases  where  an  invasion  has  actu- 
ally taken  place.  In  our  opinion  there  is  no  ground  for  a  doubt 
on  this  point,  even  if  it  had  been  relied  on,  for  the  power  to  pro- 
vide for  repelling  invasions  includes  the  power  to  provide  against 
the  attempt  and  danger  of  invasion,  as  the  necessaiy  and  proper 
means  to  eifectuate  the  object.  One  of  the  best  means  to  repel 
invasion  is  to  provide  the  requisite  force  for  action  before  the 
invader  himself  has  reached  the  soil. 

The  power  thus  confided  by  congress  to  the  President,  is,  doubt- 
less of  a  very  high  and  delicate  nature.  A  free  people  are  naturally 
jealous  of  the  exercise  of  military  power;  and  the  power  to  call 
the  militia  into  actual  service  is  certainly  felt  to  be  one  of  no 
ordinary  magnitude.  But  it  is  not  a  power  which  can  be  executed 
without  a  correspondent  responsibility.  It  is,  in  its  terms,  a 
limited  power,  confined  to  cases  of  actual  invasion,  or  of  imminent 
danger  of  invasion.  If  it  be  a  limited  power,  the  question  arises, 
by  whom  is  the  exigency  to  be  judged  of  and  decided?  Is  the 
President  the  sole  and  exclusive  judge  whether  the  exigency  has 
arisen,  or  is  it  to  be  considered  as  an  open  question,  upon  which 
every  officer  to  whom  the  orders  of  the  President  are  addressed, 
may  decide  for  himself,  and  equally  open  to  be  contested  by  every 
militia-man  who  shall  refuse  to  obey  the  orders  of  the  President? 
We  are  all  of  the  opinion  that  the  authority  to  decide  whether 
the  exigency  has  arisen  belongs  exclusively  to  the  President,  and 
that  his  decision  is  conclusive  upon  all  other  persons.  We  think 
that  this  construction  necessarily  results  from  the  nature  of  the 
power  itself,  and  from  the  manifest  object  contemplated  by  the 
act  of  congress.  The  power  itself  is  to  be  exercised  upon  sudden 
emergencies,  upon  great  occasions  of  state,  and  under  circum- 


340  CASES  ON  CONSTITUTIONAL  LAW. 

stances  which  may  be  vital  to  the  existence  of  the  Union.  A 
prompt  and  unhesitating  obedience  to  orders  is  indispensable  to 
the  complete  attainment  of  the  object.  The  service  is  a  mili- 
tary service,  and  the  command  of  a  military  nature;  and  in  such 
cases,  every  delay,  and  every  obstacle  to  an  efficient  and  imme- 
diate compliance,  necessarily  tend  to  jeopard  the  public  interests. 
While  subordinate  officers  or  soldiers  are  pausing  to  consider 
whether  they  ought  to  obey,  or  are  scrupulously  weighing  the 
evidence  of  the  facts  upon  which  the  commander-in-chief  exer- 
cises the  right  to  demand  their  services,  the  hostile  enterprise  may 
be  accomplished  without  the  means  of  resistance.  If  "the  power 
of  regulaiting  the  militia,  and  of  commanding  its  services  in  times 
of  insurrection  and  invasion,  are  (as  it  has  been  emphatically  said 
they  are)  natural  incidents  to  the  duties  of  superintending  the 
common  defense,  and  of  watching  over  the  internal  peace  of  the 
confederacy,"^  these  powers  must  be  so  construed  as  to  the  modes 
of  their  exercise  as  not  to  defeat  the  great  end  in  view.  If  a 
superior  officer  has  a  right  to  contest  the  orders  of  the  President 
upon  his  own  doubts  as  to  the  exigency  having  arisen,  it  must  be 
equally  the  right  of  every  inferior  officer  and  soldier;  and  any 
act  done  by  any  person  in  furtherance  of  such  orders  would  sub- 
ject him  to  responsibility  in  a  civil  suit,  in  which  his  defense 
must  finally  rest  upon  his  ability  to  establish  the  facts  by  com- 
petent proofs.  Such  a  course  would  be  subversive  of  all  discipline, 
and  expose  the  best-disposed  officers  to  the  chances  of  ruinous 
litigation.  Besides,  in  many  instances,  the  evidence  upon  which 
the  President  might  decide  that  there  is  imminent  danger  of  in- 
vasion, might  be  of  a  nature  not  constituting  strict  technical  proof, 
or  the  disclosure  of  the  evidence  might  reveal  important  secrets  of 
state,  which  the  public  interest,  and  even  safety,  might  imperi- 
ously demand  to  be  kept  in  concealment. 

If  we  look  at  the  language  of  the  act  of  1795,  every  con- 
clusion drawn  from  the  nature  of  the  power  itself  is  strongly 
fortified.  The  words  are,  "whenever  the  United  States  shall  be 
invaded,  or  be  in  imminent  danger  of  invasion,  &c.,  it  shall  be 
lawful  for  the  President,  &c.,  to  call  forth  such  number  of  the 
militia,  &c.,  as  he  may  judge  necessary  to  repel  such  invasion." 
The  power  itself  is  confided  to  the  Executive  of  the  Union,  to 
him  who  is,  by  the  constitution,  "the  commander-in-chief  of  the 
militia,  when  called  into  the  actual  service  of  the  United  States," 
whose  duty  it  is  to  "take  care  that  the  laws  be  faithfully  executed," 

1  The  Federalist,  No.  29. 


MARTIN  V.  MOTT.  341 

and  whose  responsibility  for  an  honest  discharge  of  his  official 
obligations  is  secured  by  the  highest  sanctions.  He  is  neces- 
sarily constituted  the  judge  of  the  existence  of  the  exigency  in 
the  first  instance,  and  is  bound  to  act  according  to  his  belief  of 
the  facts.  If  he  does  so  act,  and  decides  to  call  forth  the  militia, 
his  orders  for  this  purpose  are  in  strict  conformity  with  the  provi- 
sions of  the  law;  and  it  would  seem  to  follow  as  a  necessary  con- 
sequence that  every  act  done  by  a  subordinate  officer,  in  obedi- 
ence to  such  orders,  is  equally  justifiable.  The  law  contemplates 
that,  under  such  circumstances,  orders  shall  be  given  to  carry  the 
power  into  effect;  and  it  cannot  therefore  be  a  correct  inference 
that  any  other  person  has  a  just  right*  to  disobey  them.  The  law 
does  not  provide  for  any  appeal  from  the  judgment  of  the  Presi- 
dent, or  for  any  right  in  subordinate  officers  to  review  his  deci- 
sion, and  in  effect  defeat  it.  Whenever  a  statute  gives  a  discre- 
tionary power  to  any  person,  to  be  exercised  by  him  upon  his 
own  opinion  of  certain  facts,  it  is  a  sound  rule  of  construction, 
that  the  statute  constitutes  him  the  sole  and  exclusive  judge  of 
the  existence  of  those  facts.  And  in  the  present  case,  we  are  all 
of  opinion  that  such  is  the  true  construction  of  the  act  of  1795.  It 
is  no  answer  that  such  a  power  may  be  abused,  for  there  is  no 
power  which  is  not  susceptible  of  abuse.  The  remedy  for  this, 
as  well  as  for  all  other  official  misconduct,  if  it  should  occur,  is  to 
be  found  in  the  constiitution  itself.  In  a  free  government,  the 
danger  must  be  remote,  since  in  addition  to  the  high  qualities 
which  the  Executive  must  be  presumed  to  possess,  of  public  vir- 
tue and  honest  devotion  to  the  public  interests,  the  frequency  of 
elections,  and  the  watchfulness  of  the  representatives  of  the  na- 
tion, carry  with  them  all  the  checks  which  can  be  useful  to  guard 
against  usurpation  or  wanton  tyranny.  .  .  .  [Here  follows 
a  reference  to  the  New  York  case  of  Vanderheyden  *v.  Young,  11 
Johns.  Rep.,  150.] 

But  it  is  now  contended,  as  it  was  contended  in  that  case,  that 
notwithstanding  the  judgment  of  the  President  is  conclusive  as  to 
the  existence  of  the  exigency,  and  may  be  given  in  evidence  as 
conclusive  proof  thereof,  yet  that  the  avowry  is  fatally  defective, 
because  it  omits  to  aver  that  the  fact  did  exist.  The  argu- 
ment is  that  the  power  confided  to  the  President  is  a  limited  power, 
and  can  be  exercised  only  in  the  cases  pointed  out  in  the  statute, 
and  therefore  it  is  necessary  to  aver  the  facts  which  bring  the 
exercise  within  the  purview  of  the  statute.  In  short,  the  same 
principles  are  sought  to  be  applied  to  the  delegation  and  exercise 
of  this  power  intrusted  to  the  Executive  of  the  nation  for  great 


349  CASES   ON  CONSTITUTIONAL   LAW. 

political  purposes,  as  might  be  applied  to  the  humblest  officer 
in  the  government,  acting  upon  the  most  narrow  and  special  au- 
thority. It  is  the  opinion  of  the  court,  that  this  objection  can 
not  be  maintained.  When  the  President  exercises  an  authority 
confided  to  him  by  law,  the  presumption  is,  that  it  is  exercised  in 
pursuance  of  law.  Every  public  officer  is  presumed  to  act  in 
obedience  to  his  duty,  until  the  contrary  is  shown;  and  a  fortiori, 
this  presumption  ought  to  be  favorably  applied  to  the  chief  mag- 
istrate of  the  Union.  It  is  not  necessary  to  aver,  that  the  act 
which  he  may  rightfully  do,  was  so  done.  If  the  fact  of  the  exist- 
ence of  the  exigency  were  averred,  it  would  be  traversable,  and  of 
course  might  be  passed  upon  by  a  jury;  and  thus  the  legality 
of  the  orders  of  the  President  would  depend,  not  on  his  own  judg- 
ment of  the  facts,  but  upon  the  finding  of  those  facts  upon  the 
proofs  submitted  to  a  jury.  This  view  of  the  objection  is  pre- 
cisely the  same  which  was  acted  upon  by  the  supreme  court  of 
Xew  York,  in  the  case  already  referred  to,  and,  in  the  opinion  of 
this  court,  with  entire  legal  correctness.     .     .     . 

Upon  the  whole,  it  is  the  opinion  of  the  court  that  the  judg- 
ment of  the  court  for  the  trial  of  impeachments  and  the  correc- 
tion of  erroi*s  ought  to  be  reversed;  and  that  the  cause  be  re- 
manded to  the  same  court,  with  directions  to  cause  a  judgment 
to  be  entered  upon  the  pleadings  in  favor  of  the  avowant. 


THE  PRIZE  CASES. 

THE   BRIG   AMY   WARWICK.     THE   SCHOOXER  CREN- 
SHAW.    THE  SCHOO^^ER  BRILLIAXTE.     THE 
BARK  HIAWATHA. 

2  Black,  635.    Decided  1863. 
[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Mr.  Justice  Grier.  There  are  certain  propositions  of  law 
which  must  necessarily  affect  the  ultimate  decision  of  these  cases, 
and  many  others,  which  it  will  be  proper  to  discuss  and  decide 
before  we  notice  the  special  facts  peculiar  to  each. 

They  are,  1st.  Had  the  President  a  right  to  institute  a  block- 
ade of  ports  in  possession  of  persons  in  armed  rebellion  against 


THE  PRIZE  CASES.  343 

the  government,  on  the  principles  of  international  law,  as  known 
and  acknowledged  among  civilized  States? 

2d.  Was  the  property  of  persons  domiciled  or  residing  within 
those  States  a  proper  suhjeet  of  capture  on  the  sea  as  "enemies' 
property"  ? 

I.  Neutrals  have  a  right  to  challenge  the  existence,  of  a  block- 
ade de  facto,  and  also  the  authority  of  the  party  exercising  the 
right  to  institute  it.  They  have  a  right  to  enter  the  ports  of  a 
friendly  nation  for  the  purposes  of  trade  and  commerce,  but  are 
bound  to  recognize  the  rights  of  a  belligerent  engaged  in  actual 
war,  to  u^e  this  mode  of  coercion,  for  the  purpose  of  subduing 
the  enemy. 

That  a  blockade  de  facto  actually  existed,  and  was  formally  de- 
clared and  notified  by  the  President  on  the  27th  and  30th  of  April, 
1861,  is  an  admitted  fact  in  these  cases. 

That  the  President,  as  the  Executive  Chief  of  the  Government 
and  Commander-in-Chief  of  the  Army  and  Navy,  was  the  proper 
person  to  make  such  notification,  has  not  been,  and  cannot  be 
disputed. 

The  right  of  prize  and  capture  has  its  origin  in  the  jus  belli,  and 
is  governed  and  adjudged  under  the  law  of  nations.  To  legiti- 
mate the  capture  of  a  neutral  vessel  or  property  on  the  high  seas, 
a  war  must  exist  de  facto,  and  the  neutral  must  have  a  knowledge 
or  notice  of  the  intention  of  one  of  the  parties  belligerent  to  use 
this  mode  of  coercion  against  a  port,  city,  or  territory,  in  posses- 
sion of  the  other. 

Let  us  inquire  whether,  at  the  time  this  blockade  was  instituted, 
a  state  of  war  existed  which  would  justify  a  resort  to  these  means 
of  subduing  the  hostile  force. 

War  has  been  well  defined  to  be,  "That  state  in  which  a  nation 
prosecutes  its  right  by  force." 

The  parties  belligerent  in  a  public  war  are  independent  nations. 
But  it  is  not  necessary  to  constitute  war,  that  both  parties  should 
be  acknowledged  as  independent  nations  or  sovereign  States.  A 
war  may  exist  where  one  of  the  belligerents  claims  sovereign  rights 
as  against  the  other. 

Insurrection  against  a  government  may  or  may  not  culminate 
in  an  organized  rebellion,  but  a  civil  war  always  begins  by  in- 
surrection against  the  lawful  authority  of  the  Government.  A 
civil  war  is  never  solemnly  declared;  it  becomes  such  by  its  acci- 
dents,— the  number,  power,  and  organization  of  the  persons  who 
originate  and  carry  it  on.  When  the  party  in  rebellion  occupy 
and  hold  in  a  hostile  manner  a  certain  portion  of  territory;  have 


344  CASES   ON   CONSTITUTIONAL   LAW. 

declared  their  independence;  have  cast  off  their  allegiance;  have 
organized  armies;  have  commenced  hostilities  against  their  for- 
mer sovereign,  the  world  acknowledges  them  as  belligerents,  and 
the  contest  a  war.  They  claim  to  be  in  arms  to  establish  th»ir 
liberty  and  independence,  in  order  to  become  a  sovereign  State, 
while  the  sovereign  party  treats  them  as  insurgents  and  rebels  who 
owe  allegiance,  and  who  should  be  punished  with  death  for  their 
treason. 

The  laws  of  war,  as  established  among  nations,  have  their  foun- 
dation in  reason,  and  all  tend  to  mitigate  the  cruelties  and  misery 
produced  by  the  scourge  of  war.  Hence  the  parties  to  a  civil 
war  usually  concede  to  each  other  belligerent  rights.  They  ex- 
change prisoners,  and  adopt  the  other  courtesies  and  rules  com- 
mon to  public  or  national  wars. 

"A  civil  war,"  says  Vattel,  "breaks  the  bands  of  society  and 
government,  or  at  least  suspends  their  force  and  effect;  it  pro- 
duces in  the  nation  two  independent  parties,  who  consider  each 
other  as  enemies,  and  acknowledge  no  common  judge.  Those  two 
parties,  therefore,  must  necessarily  be  considered  as  constituting, 
at  least  for  a  time,  two  separate  bodies,  two  distinct  societies. 
Having  no  common  superior  to  judge  between  them,  they  stand 
in  precisely  the  same  predicament  as  two  nations  who  engage  in 
a  contest  and  have  recourse  to  arms. 

"This  being  the  case,  it  is  very  evident  that  the  common  laws 
of  war — ^those  maxims  of  humanity,  moderation,  and  honor — 
ought  to  be  observed  by  both  parties  in  every  civil  war.  Should 
the  sovereign  conceive  he  has  a  right  to  hang  up  his  prisoners 
as  rebels,  the  opposite  party  will  make  reprisals,  &c.,  &c.;  the  war 
will  become  cruel,  horrible,  and  every  day  more  destructive  to  the 
nation." 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine,  against 
insurgents,  its  actual  existence  is  a  fact  in  our  domestic  history 
which  the  Court  is  bound  to  notice  and  know. 

The  true  test  of  its  existence,  as  found  in  the  writings  of  the 
sages  of  the  common  law,  may  be  thus  summarily  stated:  "When 
the  regular  course  of  justice  is  interrupted  by  revolt,  rebellion,  or 
insurrection,  so  that  the  Courts  of  Justice  cannot  be  kept  open, 
civil  war  exists  and  hostilities  may  be  prosecuted  on  the  same  foot- 
ing as  if  those  opposing  the  Government  were  foreign  enemies 
invading  the  land." 

By  the  Constitution,  Congress  alone  has  the  power  to  declare 
a  national  or  foreign  war.  It  cannot  declare  war  against  a  State, 
or  any  number  of  States,  by  virtue  of  any  clause  in  the  Consti- 


THE  PRIZE  CASES.  345 

tution.  The  Constitution  confers  on  the  President  the  whole 
Executive  power.  He  is  bound  to  take  care  that  the  laws  be 
faithfully  executed.  He  is  Commander-in-Chief  of  the  Army  and 
Navy  of  the  United  States,  and  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States.  He  has 
no  power  to  initiate  or  declare  a  war  either  against  a  foreign 
nation  or  a  domestic  State.  But  by  the  Acts  of  Congress  of  Febru- 
ary 28,  1795,  and  3d  of  March,  1807,  he  is  authorized  to  call  out 
the  militia  and  use  the  military  and  naval  forces  of  the  United 
States  in  case  of  invasion  by  foreign  nations,  and  to  suppress 
insurrection  against  the  government  of  a  State  or  of  the  United 
States. 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President 
is  not  only  authorized  but  bound  to  resist  force  by  force.  He  does 
not  initiate  the  war,  but  is  bound  to  accept  the  challenge  without 
waiting  for  any  special  legislative  authority.  And  whether  the 
hostile  party  be  a  foreign  invader,  or  States  organized  in  rebel- 
lion, it  is  none  the  less  a  war,  although  the  declaration  of  it  be 
"unilateral."  Lord  Stowell  (1  Dodson,  247)  observes,  "It  is  not 
the  less  a  war  on  that  account,  for  war  may  exist  without  a  decla- 
ration on  either  side.  It  is  so  laid  down  by  the  best  writers  on 
the  law  of  nations.  A  declaration  of  war  by  one  country  only, 
is  not  a  mere  challenge  to  be  accepted  or  refused  at  pleasure  by 
the  other." 

The  battles  of  Palo  Alto  and  Eesaoa  de  la  Palma  had  been 
fought  before  the  passage  of  the  Act  of  Congress  of  May  13,  1846, 
which  recognized  "a  state  of  war  as  existing  by  the  act  of  the 
Eepublic  of  Mexico."  This  act  not  only  provided  for  the  future 
prosecution  of  the  war,  but  was  itself  a  vindication  and  ratifica- 
tion of  the  Act  of  the  President  in  accepting  the  challenge  with- 
out a  previous  formal  declaration  of  war  by  Congress. 

This  greatest  of  civil  wars  was  not  gradually  developed  by  pop- 
ular commotion,  tumultuous  assemblies,  or  local  unorganized  in- 
surrections. However  long  may  have  been  its  previous  concep- 
tion, it  nevertheless  sprung  forth  suddenly  from  the  parent  brain, 
a  Minerva  in  the  full  panoply  of  war.  The  President  was  bound 
to  meet  it  in  the  shape  it  presented  itself,  without  waiting  for 
Congress  to  baptize  it  with  a  name;  and  no  name  given  to  it  by 
him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
aiTay,  because  it  may  be  called  an  "insurrection"  by  one  side,  and 
the  insurgents  be  considered  as  rebels  or  traitors.  It  is  not  neces- 
sary that  the  independence  of  the  revolted  province  or  State  be 


346  CASES   ON  CONSTITUTIONAL   LAW. 

acknowledged  in  order  to  constitute  it  a  party  belligerent  in  a  war 
according  to  the  law  of  nations.  Foreign  nations  acknowledge 
it  as  war  by  a  declaration  of  neutrality.  The  condition  of  neutral- 
ity cannot  exist  unless  there  be  two  belli  arerent  parties.  In  the 
case  of  the  Santissima  Trinidad  (7  Wheaton,  337),  this  court  say: 
"The  Government  of  the  United  States  has  recognized  the  exist- 
ence of  a  civil  war  between  Spain  and  her  colonies,  and  has  avowed 
her  determination  to  remain  neutral  between  the  parties.  Each 
party  is  therefore  deemed  by  us  a  belligerent  nation,  having,  so 
far  as  concerns  us,  the  sovereign  rights  of  war."  (See  also  3  Binn., 
252.) 

As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the  or- 
ganization of  a  government  by  the  seceding  States,  assuming  to 
act  as  belligerents,  could  become  known  in  Europe,  to  wit,  on  the 
13th  of  May,  1861,  the  Queen  of  England  issued  her  proclamation 
of  neutrality,  "recognizing  hostilities  as  existing  between  the  Gov- 
ernment of  the  United  States  of  America  and  certain  States  styl- 
ing themselves  the  Confederate  States  of  America."  This  was 
immediately  followed  by  similar  declarations  or  silent  acquies- 
cence by  other  nations. 

After  such  an  official  recognition  by  the  sovereign,  a  citizen 
of  a  foreign  State  is  estopped  to  deny  the  existence  of  a  war  with 
all  its  consequences  as  regards  neutrals.  They  cannot  ask  a  Court 
to  affect  a  technical  ignorance  of  the  existence  of  a  war,  which  all 
the  world  acknowledges  to  be  the  greatest  civil  war  known  in  the 
history  of  the  human  race,  and  thus  cripple  the  arm  of  the  Gov- 
ernment and  paralyze  its  power  by  subtle  definitions  and  ingeni- 
ous sophisms. 

The  law  of  nations  is  also  called  the  law  of  nature;  it  is  founded 
on  the  common  consent  as  well  as  the  common  sense  of  the  world. 
It  contains  no  such  anomalous  doctrine  as  that  which  this  Court 
are  now  for  the  first  time  desired  to  pronounce,  to  wit:  That  in- 
surgents who  have  risen  in  rebellion  against  their  sovereign,  ex- 
pelled her  courts,  established  a  revolutionary  government,  organ- 
ized armies,  and  commenced  hostilities,  are  not  enemies  because 
they  are  traitors;  and  a  war  levied  on  the  government  by  traitors, 
in  order  to  dismember  and  destroy  it,  is  not  a  war  because  it  is 
an  "insurrection." 

Whether  the  President,  in  fulfilling  his  duties  as  Commander- 
in-chief  in  suppressing  an  insurrection,  has  met  with  such  armed 
hostile  resistance,  and  a  civil  war  of  such  alarming  proportions, 
as  will  compel  him  to  accord  to  them  the  character  of  belligerents, 
is  a  question  to  be  decided  by  him,  and  this  Court  must  be  gov- 


THE  PRIZE  CASES.  347 

emed  by  the  decisions  and  acts  of  the  political  department  of  the 
Government  to  which  this  power  was  intrusted.  "He  must  deter- 
mine what  degree  of  force  the  crisis  demands."  The  proclamation 
of  blockade  is  itself  official  and  conclusive  evidence  to  the  Court 
that  a  state  of  war  existed  which  demanded  and  authorized  a  re- 
course to  such  a  measure,  under  the  circumstances  peculiar  to  the 
case. 

The  correspondence  of  Lord  Lyons  with  the  Secretary  of  State 
admits  the  fact  and  concludes  the  question. 

If  it  were  necessary  to  the  technical  existence  of  a  war,  that  it 
should  have  a  legislative  sanction,  we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  the  Legislature  of  1861, 
which  was  wholly  employed  in  enacting  laws  to  enable  the  Gov- 
ernment to  prosecute  the  war  with  vigor  and  efficiency.  And 
finally,  in  1861,  we  find  Congress  "ea:  majore  cmitela"  and  in  an- 
ticipation of  such  astute  objections,  passing  an  act  "approving, 
legalizing,  and  making  valid  all  the  acts,  proclamations,  and  orders 
of  the  President,  &c.,  as  if  they  had  been  issued  and  done  under 
the  previous  express  authority  and  direction  of  the  Congress  of 
the  United  States." 

Without  admitting  that  such  an  act  was  necessary  under  the 
circumstances,  it  is  plain  that  if  the  President  had  in  any  manner 
assumed  powers  which  it  was  necessary  should  have  the  authority 
or  sanction  of  Congress,  that  on  the  well  known  principle  of  law, 
"omnis  ratihabitio  retrotrahitur  et  mandato  equiparatur,"  this 
ratification  has  operated  to  perfectly  cure  the  defect.  In  the  case 
of  Brown  vs.  United  States  (8  Cr.,  131,  132,  133),  Mr.  Justice 
Story  treats  of  this  subject,  and  cites  numerous  authorities  to 
which  we  may  refer  to  prove  this  position,  and  concludes,  "I  am 
perfectly  satisfied  that  no  subject  can  commence  hostilities  or 
capture  property  of  an  enemy,  when  the  sovereign  has  prohibited 
it.  But  suppose  he  did,  I  would  ask  if  the  sovereign  may  not 
ratify  his  proceedings,  and  thus  by  a  retroactive  operation  give 
validity  to  them?" 

Although  Mr.  Justice  Story  dissented  from  the  majority  of  the 
Court  on  the  whole  case,  the  doctrine  stated  by  him  on  this  point 
is  correct  and  fully  substantiated  by  authority. 

The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post 
facto,  and  therefore  unconstitutional  and  void,  might  possibly 
have  some  weight  on  the  trial  of  an  indictment  in  a  criminal 
Court.  But  precedents  from  that  source  cannot  be  received  as 
authoritative  in  a  tribunal  administering  public  and  international 
law. 


348  CASES  ON  CONSTITUTIONAL   LAW. 

On  this  first  question  therefore  we  are  of  the  opinion  that  the 
President  had  a  right,  jtire  belli,  to  institute  a  blockade  of  ports 
in  possession  of  the  States  in  rebellion,  which  neutrals  are  bound 
to  regard. 

II.  "We  come  now  to  the  consideration  of  the  second  question. 
What  is  included  in  the  term  "enemies'  property"? 

Is  the  property  of  all  persons  residing  within  the  territory  of 
the  States  now  in  rebellion,  captured  on  the  high  seas,  to  be 
treated  as  "enemies'  property"  whether  the  owner  be  in  arms 
against  the  Government  or  not? 

The  right  of  one  belligerent  not  only  to  coerce  the  other  by 
direct  force,  but  also  to  cripple  his  resources  by  the  seizure  or  de- 
struction of  his  property,  is  a  necessary  result  of  a  state  of  war. 
Money  and  wealth,  the  products  of  agriculture  and  commerce,  are 
said  to  be  the  sinews  of  war,  and  as  necessary  in  its  conduct  as 
numbers  and  physical  force.  Hence  it  is,  that  the  laws  of  war 
recognize  the  right  of  a  belligerent  to  cut  these  sinews  of  the 
power  of  the  enemy,  by  capturing  his  property  on  the  high  seas. 

The  appellants  contend  that  the  term  "enemy"  is  properly  ap- 
plicable to  those  only  who  are  subjects  or  citizens  of  a  foreign 
State  at  war  with  our  own.  They  quote  from  the  pages  of  the 
common  law,  which  say,  "that  persons  who  wage  war  against  the 
King  may  be  of  two  kinds,  subjects  or  citizens.  The  former  are 
not  proper  enemies,  but  rebels  and  traitors;  the  latter  are  those 
that  come  properly  under  the  name  of  enemies." 

They  insist,  moreover,  that  the  President  himself,  in  his  procla- 
mation, admits  that  great  numbers  of  the  persons  residing  within 
the  territories  in  possession  of  the  insurgent  government  are  loyal 
in  their  feelings,  and  forced  by  compulsion  and  the  violence  of 
the  rebellious  and  revolutionary  party  and  its  "de  facto  govern- 
ment" to  submit  to  their  laws  and  assist  in  their  scheme  of  revolu- 
tion; that  the  acts  of  the  usurping  government  cannot  legally 
sever  the  bond  of  their  allegiance;  they  have,  therefore,  a  co-rela- 
tive right  to  claim  the  protection  of  the  government  for  their  per- 
sons and  property,  and  to  be  treated  as  loyal  citizens,  till  legally 
convicted  of  having  renounced  their  allegiance  and  made  war 
against  the  Government  by  treasonably  resisting  its  laws. 

They  contend,  also,  that  insurrection  is  the  act  of  individuals 
and  not  of  a  government  or  sovereignty;  that  the  individuals  en- 
gaged are  subjects  of  law.  That  confiscation  of  their  property 
can  be  effected  only  under  a  municipal  law.  That  by  the  law  of 
the  land  such  confiscation  cannot  take  place  without  the  convic- 
tion of  the  owner  of  some  offense,  and  finally  that  the  secession 


•     THE  PRIZE  CASES.  349 

ordinances  are  nullities  and  inefEectual  to  release  any  citizen  from 
his  allegiance  to  the  national  Government,  and  consequently  that 
the  Constitution  and  laws  of  the  United  States  are  still  operative 
over  persons  in  all  the  States  for  punishment  as  well  as  protection. 

This  argument  rests  on  the  assumption  of  two  propositions, 
each  of  which  is  without  foundation  on  the  established  law  of 
nations.  It  assumes  that  where  a  civil  war  exists,  the  party  bellig- 
erent claiming  to  be  sovereign  cannot,  for  some  unknown  reason, 
exercise  the  rights  of  belligerents,  although  the  revolutionary 
party  may.  Being  sovereign,  he  can  exercise  only  sovereign  rights 
over  the  other  party.  The  insurgent  may  be  killed  on  the  battle- 
field or  by  the  executioner;  his  property  on  land  may  be  confis- 
cated under  the  municipal  law;  but  the  commerce  on  the  ocean, 
which  supplies  the  rebels  with  means  to  support  the  war,  cannot 
be  made  the  subject  of  capture  under  the  laws  of  war,  because  it 
is  "unconstitutional!!!"  Now,  it  is  a  proposition  never  doubted, 
that  the  belligerent  party  who  claims  to  be  sovereign  may  exercise 
both  belligerent  and  sovereign  rights,  (see  4  Cr.,  272).  Treating 
the  other  party  as  a  belligerent  and  using  only  the  milder  modes 
of  coercion  which  the  law  of  nations  has  introduced  to  mitigate 
the  rigors  of  war,  cannot  be  a  subject  of  complaint  by  the  party  to 
whom  it  is  accorded  as  a  grace  or  granted  as  a  necessity.  We 
have  shown  that  a  civil  war  such  as  that  now  waged  between  the 
Northern  and  Southern  States  is  properly  conducted  according  to 
the  humane  regulations  of  public  law  as  regards  capture  on  the 
ocean. 

Under  the  very  peculiar  Constitution  of  this  Government,  al- 
though the  citizens  owe  supreme  allegiance  to  the  Federal  Gov- 
ernment, they  owe  also  a  qualified  allegiance  to  the  State  in  which 
they  are  domiciled.  Their  persons  and  property  are  subject  to  its 
laws. 

Hence,  in  organizing  this  rebellion,  they  have  acted  as  States 
claiming  to  be  sovereign  over  all  persons  and  property  within  their 
respective  limits,  and  asserting  a  right  to  absolve  their  citizens  from 
their  allegiance  to  the  Federal  Government.  Several  of  these  States 
have  combined  to  form  a  new  confederacy,  claiming  to  be  acknowl- 
edged by  the  world  as  a  sovereign  state.  Their  right  to  do  so  is 
now  being  decided  by  wager  of  battle.  The  ports  and  territory 
of  each  of  these  States  are  held  in  hostility  to  the  General  Govern- 
ment. It  is  no  loose,  unorganized  insurrection,  having  no  defined 
boundary  or  possession.  It  has  a  boundary  marked  by  lines  of 
bayonets,  and  which  can  be  crossed  only  by  force — south  of  this 


350  CASES   ON  CONSTITUTIONAL   LAW. 

line  is  enemies'  territory,  because  it  is  claimed  and  held  in  posses- 
sion by  an  organized,  hostile  and  belligerent  power. 

All  persons  residing  within  this  territory  whose  property  may 
be  used  to  increase  the  revenues  of  the  hostile  power  are,  in  this 
contest,  liable  to  be  treated  as  enemies,  though  not  foreigners. 
They  have  cast  off  their  allegiance  and  made  war  on  their  Govern- 
ment, and  are  none  the  less  enemies  because  they  are  traitors. 

But  in  defining  the  meaning  of  the  term  "enemies'  property," 
we  will  be  led  into  error  if  we  refer  to  Fleta  and  Lord  Coke  for 
their  definition  of  the  word  "enemy."  It  is  a  technical  phrase 
peculiar  to  prize  courts,  and  depends  upon  principles  of  public 
policy  as  distinguished  from  the  common  law. 

Whether  property  be  liable  to  capture  as  "enemies'  property" 
does  not  in  any  manner  depend  on  the  personal  allegiance  of  the 
owner.  "It  is  the  illegal  traffic  that  stamps  it  as  'enemies'  prop- 
erty.' It  is  of  no  consequence  whether  it  belongs  to  an  ally  or  a 
citizen.  8  Cr.,  384.  The  owner,  pro  liac  vice,  is  an  enemy."  3 
Wash.  C.  C.  R.,  183. 

The  produce  of  the  soil  of  the  hostile  country,  as  well  as  other 
property  engaged  in  the  commerce  of  the  hostile  power,  as  the 
source  of  its  wealth  and  strength,  are  always  regarded  as  legiti- 
mate prize,  without  regard  to  the  domicile  of  the  owner,  and  much 
more  so  if  he  reside  and  trade  within  their  territory. 

III.  We  now  proceed  to  notice  the  facts  peculiar  to  the  several 
cases  submitted  for  our  consideration.  The  principles  which  have 
just  been  stated  apply  alike  to  all  of  them.     .     .     . 

[Mr.  Justice  Nelson  delivered  a  dissenting  opinion,  m  which 
Chief  Justice  Taney  and  Justices  Catbon  and  Clifford  con- 
curred.] 

Note. — The  decision  in  the  Prize  Cases  was  important  not  only 
for  the  legal  points  determined,  but  for  the  complications  that 
would  have  ensued  had  the  decision  been  different.  The  gravity 
of  the  situation  is  set  forth  in  the  following  letter  of  Richard  H. 
Dana,  Jr.,  who  was  one  of  the  counsel  for  the  Government.  He 
said,  "The  Government  is  carrying  on  a  war.  It  is  exerting  all 
the  powers  of  war.  Yet  the  claimants  of  the  captured  vessels  not 
only  seek  to  save  their  vessels  by  denying  that  they  are  liable  to 
capture,  but  deny  the  right  of  the  Government  to  exercise  war 
powers, — deny  that  this  can  be,  in  point  of  law,  a  war.  So  the 
judiciary  is  actually,  after  a  war  of  twenty-three  months'  duration, 
to  decide  whether  the  Government  has  the  legal  capacity  to  exert 


EX  PARTE  MILLIGAN.  351 

these  war  powers.  .  .  .  Contemplate,  my  dear  sir,  the  possi- 
bility of  the  Supreme  Court  deciding  that  this  blockade  is  illegal! 
What  a  position  it  would  put  us  in  before  the  world,  whose  com- 
merce we  have  been  illegally  prohibiting,  whom  we  have  unlaw- 
fully subjected  to  cotton  famine,  and  domestic  dangers  and  dis- 
tress for  two  years!  It  would  end  the  war,  and  where  it  would 
leave  us  with  neutral  powers,  it  is  fearful  to  contemplate!  Yet 
such  an  event  is  legally  possible, — I  do  not  think  it  probable^ 
hardly  possible,  in  fact.  But  last  year  I  think  there  was  danger 
of  such  a  result  when  the  blockade  was  new,  and  before  the  three 
new  Judges  were  appointed."  C.  F.  Adams,  Life  of  Richard 
Henry  Dana,  II,  267.  Quoted  by  Carson,  The  Supreme  Court  of 
the  United  States,  385. 

That  the  fears  expressed  in  this  letter  were  not  groundless  ap- 
pears from  the  fact  that  a  majority  of  the  court  as  it  was  consti- 
tuted before  the  appointment  of  the  new  judges  dissented  from 
the  judgment  rendered  in  this  case. 


Ex  PARTE  MILLIGAN". 
4  Wallace,  2.    Decided  1866. 

This  case  came  before  the  court  upon  a  certificate  of  division 
from  the  judges  of  the  Circuit  Court  for  Indiana,  on  a  petition 
for  discharge  from  unlawful  imprisonment.  .  .  .  [The  facts 
are  sufficiently  stated  in  the  opinion  of  the  court.] 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

On  the  10th  day  of  May,  1865,  Lambdin  P.  Milligan  presented 
a  petition  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Indiana,  to  be  discharged  from  an  alleged  unlawful  imprison- 
ment. The  case  made  by  the  petition  is  this:  Milligan  is  a  citizen 
of  the  United  States;  has  lived  for  twenty  years  in  Indiana;  and, 
at  the  time  of  the  grievances  complained  of,  was  not,  and  never 
had  been  in  the  military  or  naval  service  of  the  United  States. 
On  the  5th  day  of  October,  1864,  while  at  home,  he  was  arrested 
by  order  of  General  Alvin  P.  Hovey,  commanding  the  military 
district  of  Indiana;  and  has  ever  since  been  kept  in  close  confine- 
ment. 

On  the  21st  day  of  October,  1864,  he  was  brought  before  a 


352  CASES   ON  CONSTITUTIONAL   LAW. 

military  commission,  convened  at  Indianapolis,  by  order  of  Gen- 
eral Hovey,  tried  on  certain  charges  and  specifications;  found 
guilty,  and  sentenced  to  be  hanged;  and  the  sentence  ordered  to 
be  executed  on  Friday,  the  19th  day  of  May,  1865. 

On  the  2d  day  of  January,  1865,  after  the  proceedings  of  the 
military  commission  were  at  an  end,  the  Circuit  Court  of  the 
United  States  for  Indiana  met  at  Indianapolis  and  empanelled 
a  grand  jury,  who  were  charged  to  inquire  whether  the  laws  of 
the  United  States  had  been  violated;  and,  if  so,  to  make  present- 
ments. The  court  adjourned  on  the  27th  day  of  January,  having 
prior  thereto  discharged  from  further  service  the  grand  jury,  who 
did  not  find  any  bill  of  indictment  or  make  any  presentment 
against  Milligan  for  any  offense  whatever;  and  in  fact,  since  his 
imprisonment,  no  bill  of  indictment  has  been  found  or  present- 
ment made  against  him  by  any  grand  jury  of  the  United  States. 

Milligan  insists  that  said  military  commission  had  no  jurisdic- 
tion to  try  him  upon  the  charges  preferred,  or  upon  any  charges 
whatever;  because  he  was  a  citizen  of  the  United  States  and  the 
State  of  Indiana,  and  had  not  been,  since  the  commencement  of 
the  late  Rebellion,  a  resident  of  any  of  the  States  whose  citizens 
were  aiTayed  against  the  government,  and  that  the  right  of  trial 
by  jury  was  guaranteed  to  him  by  the  Constitution  of  the  United 
States. 

The  prayer  of  the  petition  was,  that  under  the  act  of  Congress, 
approved  March  3d,  1863,  entitled,  "An  act  relating  to  habeas 
corpus  and  regulating  judicial  proceedings  in  certain  cases,"  he 
may  be  brought  before  the  court,  and  either  turned  over  to  the 
proper  civil  tribunal  to  be  proceeded  against  according  to  the  law 
of  the  land  or  discharged  from  custody  altogether. 

With  the  petition  Avere  filed  the  order  for  the  commission,  the 
charges  and  specifications,  the  findings  of  the  court,  with  the  order 
of  the  War  Department  reciting  that  the  sentence  was  approved 
by  the  President  of  the  United  States,  and  directing  that  it  be 
carried  into  execution  without  delay.  The  petition  was  presented 
and  filed  in  open  court  by  the  counsel  for  Milligan;  at  the  same 
time  the  District  Attorney  of  the  United  States  for  Indiana  ap- 
peared, and,  by  the  agreement  of  counsel,  the  application  was  sub- 
mitted to  the  court.  The  opinions  of  the  judges  of  the  Circuit 
Court  were  opposed  on  three  questions,  which  are  certified  to  the 
Supreme  Court: 

1st.  "On  the  facts  stated  in  said  petition  and  exhibits,  ought  a 
writ  of  habeas  corpus  to  be  issued?" 

2d.  "On  the  facts  stated  in  said  petition  and  exhibits,  ought  the 


EX  PARTE  MILLIGAN.  353 

said  Lambdin  P.  Milligan  to  be  discharged  from  custody  as  in 
said  petition  prayed?" 

3d.  "Whether,  upon  the  facts  stated  in  said  petition  and  ex- 
hibits, the  military  commission  mentioned  therein  had  jurisdic- 
tion legally  to  try  and  sentence  said  Milligan  in  manner  and  form 
as  in  said  petition  and  exhibits  is  stated?" 

The  importance  of  the  main  question  presented  by  this  record 
cannot  be  overstated;  for  it  involves  the  very  framework  of  the 
government  and  the  fundamental  principles  of  American  liberty. 

During  the  late  wicked  Eebellion,  the  temper  of  the  times  did 
not  allow  that  calmness  in  deliberation  and  discussion  so  neces- 
sary to  a  correct  conclusion  of  a  purely  judicial  question.  Then, 
considerations  of  safety  were  mingled  with  the  exercise  of  power; 
and  feelings  and  interests  prevailed  which  are  happily  terminated. 
Now  that  the  public  safety  is  assured,  this  question,  as  well  as  all 
others,  can  be  discussed  and  decided  without  passion  or  the  admix- 
ture of  any  element  not  required  to  form  a  legal  judgment.  We 
approach  the  investigation  of  this  case,  fully  sensible  of  the  mag- 
nitude of  the  inquiry  and  the  necessity  of  full  and  cautious  de- 
liberation. 

But  we  are  met  with  a  preliminary  objection.  It  is  insisted 
that  the  Circuit  Court  of  Indiana  had  no  authority  to  certify  these 
questions;  and  that  we  are  without  jurisdiction  to  hear  and  de- 
termine them. 

The  sixth  section  of  the  "Act  to  amend  the  judicial  system  of 
the  United  States,"  approved  April  29,  1802,  declares  "that  when- 
ever any  question  shall  occur  before  a  Circuit  Court  upon  which 
the  opinions  of  the  judges  shall  be  opposed,  the  point  upon  which 
the  disagreement  shall  happen,  shall,  during  the  same  term,  upon 
the  request  of  either  party  or  their  counsel,  be  stated  under  the 
direction  of  the  judges  and  certified  under  the  seal  of  the  court 
to  the  Supreme  Court  at  their  next  session  to  be  held  thereafter; 
and  shall  by  the  said  court  be  finally  decided:  And  the  decision 
of  the  Supreme  Court  and  their  order  in  the  premises  shall  be  re- 
mitted to  the  Circuit  Court  and  be  there  entered  of  record,  and 
shall  have  effect  according  to  the  nature  of  the  said  judgment  and 
order:  Provided,  That  nothing  herein  contained  shall  prevent 
the  cause  from  proceeding,  if,  in  the  opinion  of  the  court,  further 
proceedings  can  be  had  without  prejudice  to  the  merits." 

It  is  under  this  provision  of  law  that  a  Circuit  Court  has  author- 
ity to  certify  any  question  to  the  Supreme  Court  for  adjudication. 
The  inquiry,'  therefore,  is  whether  the  case  of  Milligan  is  brought 
within  its  terms. 


354  CASES   ON  CONSTITUTIONAL   LAW. 

It  was  admitted  at  the  bar  that  the  Circuit  Court  had  jurisdic- 
tion to  entertain  the  application  for  the  writ  of  habeas  corpus  and 
to  hear  and  determine  it;  and  it  could  not  be  denied;  for  the 
power  is  expressly  given  in  the  14th  section  of  the  Judiciary  Act 
of  1789,  as  well  as  in  the  later  act  of  18G3,  Chief  Justice  Mar- 
shall, in  Bollman's  case,^  construed  this  branch  of  the  Judiciary 
Act  to  authorize  the  courts  as  well  as  the  judges  to  issue  the  writ 
for  the  purpose  of  inquiring  into  the  cause  of  the  commitment; 
and  this  construction  has  never  been  departed  from.  But  it  is 
maintained  with  earnestness  and  ability  that  a  certificate  of  di- 
vision of  opinion  can  occur  only  in  a  cause;  and  that  the  pro- 
ceeding by  a  party,  moving  for  a  writ  of  habeas  corpus,  does  not 
become  a  cause  until  after  the  writ  has  been  issued  and  a  return 
made. 

Independently  of  the  provisions  of  the  act  of  Congress  of  March 
3,  1863,  relating  to  habeas  corpus,  on  which  the  petitioner  bases 
his  claim  for  relief,  and  which  we  will  presently  consider,  can  this 
position  be  sustained? 

It  is  true  that  it  is  usual  for  a  court  on  application  for  a  writ 
of  habeas  corpus,  to  issue  the  writ,  and  on  the  return,  to  dispose 
of  the  case;  but  the  court  can  elect  to  waive  the  issuing  of  the 
writ  and  consider  whether,  upon  the  facts  presented  in  the  peti- 
tion, the  prisoner,  if  brought  before  it,  could  be  discharged.  One 
of  the  very  points  on  which  the  case  of  Tobias  Watkins,  reported 
in  3  Peters,^  turned,  was,  whether,  if  the  writ  has  issued,  the  peti- 
tioner would  be  remanded  upon  the  case  which  he  had  made.  The 
Chief  Justice,  in  delivering  the  opinion  of  the  court,  said:  "The 
cause  of  imprisonment  is  shown  as  fully  by  the  petitioner  as  it 
could  appear  on  the  return  of  the  writ;  consequently  the  writ 
ought  not  to  be  awarded  if  the  court  is  satisfied  that  the  prisoner 
would  be  remanded  to  prison." 

The  judges  of  the  Circuit  Court  of  Indiana  were,  therefore, 
warranted  by  an  express  decision  of  this  court  in  refusing  the 
writ,  if  satisfied  that  the  prisoner  on  his  own  showing  was  right- 
fully detained. 

But  it  is  contended,  if  they  differed  about  the  lawfulness  of 
the  imprisonment,  and  could  render  no  judgment,  the  prisoner  is 
remediless;  and  cannot  have  the  disputed  question  certified  under 
the  act  of  1802.  His  remedy  is  complete  by  writ  of  error  or  ap- 
peal, if  the  court  renders  a  final  judgment  refusing  to  discharge 
him;   but  if  he  should  be  so  unfortunate  as  to  be  placed  in  the 

1  4  Cranch,  75.  2  Page  193. 


EX  PARTE  MILLIGAN.  355 

predicament  of  having  the  court  divided  on  the  question  whether 
he  should  live  or  die,  he  is  hopeless  and  without  remedy.  He 
wishes  the  vital  question  settled,  not  by  a  single  judge  at  his 
chambers,  but  by  the  highest  tribunal  known  to  the  Constitution; 
and  yet  the  privilege  is  denied  him;  because  the  Circuit  Court 
consists  of  two  judges  instead  of  one. 

Such  a  result  was  not  in  the  contemplation  of  the  legislature  of 
1802;  and  the  language  used  by  it  cannot  be  construed  to  mean 
any  such  thing.  The  clause  under  consideration  was  introduced 
to  further  the  ends  of  justice,  by  obtaining  a  speedy  settlement  of 
important  questions  where  the  judges  might  be  opposed  in  opinion. 

The  act  of  1802  so  changed  the  judicial  system  that  the  Circuit 
Court,  instead  of  three,  was  composed  of  two  judges;  and  with- 
out this  provision  or  a  kindred  one,  if  the  judges  differed,  the 
difference  would  remain,  the  question  be  unsettled,  and  justice 
denied.  The  decisions  of  this  court  upon  the  provisions  of  this 
section  have  been  numerous.  In  United  States  v.  Daniel,^  the 
court,  in  holding  that  a  division  of  the  judges  on  a  motion  for  a 
new  trial  could  not  be  certified,  say:  "That  the  question  must 
be  one  which  arises  in  a  cause  depending  before  the  court  relative 
to  a  proceeding  belonging  to  the  cause."  Testing  Milligan's  case 
by  this  rule  of  law,  is  it  not  apparent  that  it  is  rightfully  here;  and 
that  we  are  compelled  to  answer  the  questions  on  which  the  judges 
below  were  opposed  in  opinion?  If,  in  the  sense  of  the  law,  the 
proceeding  for  the  writ  of  habeas  corpus  was  the  "cause"  of  the 
part)'^  applying  for  it,  then  it  is  evident  that  the  "cause"  was 
pending  before  the  court,  and  that  the  questions  certified  arose 
out  of  it,  belonged  to  it,  and  were  matters  of  right  and  not  of  dis- 
cretion. 

But  it  is  argued  that  the  proceeding  does  not  ripen  into  a  cause, 
until  there  are  two  parties  to  it. 

This  we  deny.  It  was  the  cause  of  Milligan  when  the  petition 
was  presented  to  the  Circuit  Court.  It  would  have  been  the 
cause  of  both  parties,  if  the  court  had  issued  the  writ  and  brought 
those  who  held  Milligan  in  custody  before  it.  "Webster  defines  the 
word  "cause"  thus:  "A  suit  or  action  in  court;  any  legal  process 
which  a  party  institutes  to  obtain  his  demand,  or  by  which  he 
seeks  his  right,  or  supposed  right" — and  he  says,  "this  is  a  legal, 
scriptural,  and  popular  use  of  the  word  coinciding  nearly  with 
case,  from  cadOy  and  action,  from  ago,  to  urge  and  drive." 

In  any  legal  sense,  action,  suit,  and  cause,  are  convertible  terms. 

3  6  Wheaton,  542. 


356  CASES   ON  CONSTITUTIONAL   LAW. 

Milligan  supposed  he  had  a  right  to  test  the  validity  of  his  trial 
and  sentence;  and  the  proceeding  which  he  set  in  operation  for 
that  purpose  was  his  "cause"  or  "suit."  It  was  the  only  one  by 
which  he  could  recover  his  liberty.  He  was  powerless  to  do  more; 
he  could  neither  instruct  the  judges  nor  control  their  action,  and 
should  not  suffer,  because,  without  fault  of  his,  they  were  unable 
to  render  a  judgment.  But  the  true  meaning  to  the  term  "suit" 
has  been  given  by  this  court.  One  of  the  questions  in  Weston  v. 
City  Council  of  Charleston*  was  whether  a  writ  of  prohibition 
was  a  suit;  and  Chief  Justice  Marshall  says:  "The  term  is  cer- 
tainly a  comprehensive  one,  and  is  understood  to  apply  to  any 
proceeding  in  a  court  of  justice  by  which  an  individual  pursues 
that  remedy  which  the  law  affords  him."  Certainly,  Milligan 
pursued  the  only  remedy  which  the  law  afforded  him. 

Again  in  Cohens  v.  Virginia,^  he  says:  "In  law  language 
a  suit  is  the  prosecution  of  some  demand  in  a  court  of 
justice."  Also,  "To  commence  a  suit  is  to  demand  something 
by  the  institution  of  process  in  a  court  of  justice;  and  to  prose- 
cute the  suit  is  to  continue  that  demand."  When  Milligan  de- 
manded his  release  by  the  proceeding  relaiting  to  habeas  corpus, 
he  commenced  a  suit;  and  he  has  since  prosecuted  it  in  all  the 
ways  known  to  the  law.  One  of  the  questions  in  Holmes  v.  Jenni- 
son  et  al.,°  was,  whether  under  the  2oth  section  of  the  Judiciary 
Act  a  proceeding  for  a  writ  of  habeas  corpus  was  a  "suit."  Chief 
Justice  Taney  held,  that,  "if  a  party  is  unlawfully  imprisoned, 
the  writ  of  habeas  corpus  is  his  appropriate  legal  remedy.  It  is 
his  suit  in  court  to  recover  his  liberty."  There  was  much  diversity 
of  opinion  on  another  ground  of  jurisdiction;  but  that,  in  the 
sense  of  the  25th  section  of  the  Judiciary  Act,  the  proceeding  by 
habeas  corpus  was  a  suit,  was  not  controverted  by  any  except  Bald- 
win, Justice,  and  he  thought  that  "suit"  and  "cause"  as  used  in 
the  section,  mean  the  same  thing. 

The  court  do  not  say  that  a  return  must  be  made  and  the  parties 
appear  and  begin  to  try  the  case  before  it  is  a  suit.  When  the 
petition  is  filed  and  the  writ  prayed  for,  it  is  a  suit, — ^the  suit  of 
the  party  making  the  application.  If  it  is  a  suit  under  the  25th 
section  of  the  Judiciary  Act  when  the  proceedings  are  begun,  it 
is,  by  all  the  analogies  of  the  law,  equally  a  suit  under  the  6th 
section  of  the  act  of  1802. 

But  it  is  argued,  that  there  must  be  two  parties  to  the  suit,  be- 

4  2  Peters,  449.  e  14  Peters,  540. 

5  6   Wheaton,   264. 


EX  PARTE  MILLIGAN.  357 

cause  the  point  is  to  be  stated  upon  the  request  of  "either  party 
or  their  counsel." 

Such  a  literal  and  technical  construction  would  defeat  the  very 
purpose  the  legislature  had  in  view,  which  was  to  enable  any  party 
to  bring  the  case  here,  when  the  point  in  controversy  was  a  matter 
of  right  and  not  of  discretion;  and  the  words  "either  party,"  in 
order  to  prevent  a  failure  of  justice,  must  be  construed  as  words 
of  enlargement,  and  not  of  restriction.  Although  this  case  is 
here  ex  parte,  it  was  not  considered  by  the  court  below  without 
notice  having  been  given  to  the  party  supposed  to  have  an  interest 
in  the  detention  of  the  prisoner.  The  statements  of  the  record 
show  that  this  is  not  only  a  fair,  but  conclusive  inference.  When 
the  counsel  for  Milligan  presented  to  the  court  the  petition  for  a 
writ  of  habeas  corpus,  Mr.  Hanna,  the  District  Attorney  for  Indi- 
ana, also  appeared;  and,  by  agreement,  the  application  was  sub- 
mitted to  the  court,  who  took  the  case  under  advisement,  and  on 
the  next  day  announced  their  inability  to  agree,  and  made  the 
certificate.  It  is  clear  that  Mr.  Hanna  did  not  represent  the  peti- 
tioner, and  why  is  his  appearance  entered?  It  admits  of  no  other 
solution  than  this, — that  he  was  informed  of  the  application,  and 
appeared  on  behalf  of  the  government  to  contest  it.  The  govern- 
ment was  the  prosecutor  of  Milligan,  who  claimed  that  his  impris- 
onment wa?.  illegal;  and  sought,  in  the  only  way  he  could,  to 
recover  his  liberty.  The  case  was  a  grave  one;  and  the  court, 
unquestionably,  directed  that  the  law  officer  of  the  government 
should  be  informed  of  it.  He  very  properly  appeared,  and,  as  the 
facts  were  uncontroverted  and  the  difficulty  was  in  the  application 
of  the  law,  there  was  no  useful  purpose  to  be  obtained  in  issuing 
the  writ.  The  cause  was,  therefore,  submitted  to  the  court  for 
their  consideration  and  determination. 

But  Milligan  claimed  his  discharge  from  custody  by  virtue  of 
the  act  of  Congress  "relating  to  habeas  corpus,  and  regulating 
judicial  proceedings  in  certain  cases,"  approved  March  3,  1863. 
Did  that  act  confer  jurisdiction  on  the  Circuit  Court  of  Indiana 
to  hear  this  case? 

In  interpreting  a  law,  the  motives  which  must  have  operated 
with  the  legislature  in  passing  it  are  proper  to  be  considered.  This 
law  was  passed  in  a  time  of  great  national  peril,  when  our  heritage 
of  free  government  Avas  in  danger.  An  armed  rebellion  against 
the  national  authority,  of  greater  proportions  than  history  affords 
an  example  of,  was  raging;  and  the  public  safety  required  that  the 
privilege  of  the  writ  of  habeas  corpus  should  be  suspended.  The 
President  had  practically  suspended  it,  and  detained  suspected 


358  CASES   ON  CONSTITUTIONAL   LAW. 

persons  in  custody  without  trial;  but  his  authority  to  do  this  was 
questioned.  It  was  claimed  that  Congress  alone  could  exercise 
this  power;  and  that  the  legislature,  and  not  the  President,  should 
judge  of  the  political  considerations  on  which  the  right  to  sus- 
pend it  rested.  The  privilege  of  this  great  writ  had  never  before 
been  withheld  from  the  citizen;  and  as  the  exigence  of  the  times 
demanded  immediate  action,  it  was  of  the  highest  importance 
that  the  lawfulness  of  the  suspension  should  be  fully  established. 
It  was  under  these  circumstances,  which  were  such  as  to  arrest 
the  attention  of  the  country,  that  this  law  was  passed.  The  Presi- 
dent was  authorized  by  it  to  suspend  the  privilege  of  the  writ  of 
habeas  corpus,  whenever,  in  his  judgment,  the  public  safety  re- 
quired; and  he  did,  by  proclamation,  bearing  date  the  15th  of 
September,  1863,  reciting,  among  other  things,  the  authority  of 
this  statute,  suspend  it.  The  suspension  of  the  writ  does  not 
authorize  the  arrest  of  any  one,  but  simply  denies  to  one  arrested 
the  privilege  of  this  writ  in  order  to  obtain  his  liberty. 

It  is  proper,  therefore,  to  inquire  under  what  circumstances  the 
courts  could  rightfully  refuse  to  grant  this  writ,  and  when  the 
citizen  was  at  liberty  to  invoke  its  aid. 

The  second  and  third  sections  of  the  law  are  explicit  on  these 
points.  The  language  used  is  plain  and  direct,  and  the  meaning 
of  the  Congress  cannot  be  mistaken.  The  public  safety  demanded, 
if  the  President  thought  proper  to  arrest  a  suspected  person,  that 
he  should  not  be  required  to  give  the  cause  of  his  detention  on 
return  to  a  writ  of  habeas  corpus.  But  it  was  not  contemplated 
that  such  person  should  be  detained  in  custody  beyond  a  certain 
fixed  period,  unless  certain  judicial  proceedings,  known  to  the 
common  law,  were  commenced  against  him.  The  Secretaries  of 
State  and  War  were  directed  to  furnish  to  the  judges  of  the  courts 
of  the  United  States  a  list  of  the  names  of  all  parties,  not  prisoners 
of  war,  resident  in  their  respective  jurisdictions,  who  then  were 
or  aftenvards  should  be  held  in  custody  by  the  authority  of  the 
President,  and  who  were  citizens  of  States  in  which  the  admin- 
istration of  the  laws  in  the  Federal  tribunals  was  unimpaired. 
After  the  list  was  furnished,  if  a  grand  jury  of  the  district  con- 
vened and  adjourned,  and  did  not  indict  or  present  one  of  the 
persons  thus  named,  he  was  entitled  to  his  discharge;  and  it  w;is 
the  duty  of  the  judge  of  the  court  to  order  him  brought  before 
him  to  be  discharged,  if  he  desired  it.  The  refusal  or  omission  to 
furnish  the  list  could  not  operate  to  the  injury  of  any  one  who 
was  not  indicted  or  presented  by  the  grand  jury;  for,  if  twenty 
days  had  elapsed  from  the  time  of  his  arrest  and  the  termination 


EX  PARTE  MILLIGAN.  359 

of  the  session  of  the  grand  jury,  he  was  equally  entitled  to  his 
discharge  as  if  the  list  were  furnished;  and  any  credible  person, 
on  petition  verified  by  affidavit,  could  obtain  the  judge's  order 
for  that  purpose, 

Milligan,  in  his  application  to  be  released  from  imprisonment, 
averred  the  existence  of  every  fact  necessary  under  the  terms  of 
this  law  to  give  the  Circuit  Court  of  Indiana  jurisdiction.  If  he 
was  detained  in  custody  by  the  order  of  the  President,  otherwise 
than  as  a  prisoner  of  war;  if  he  was  a  citizen  of  Indiana  and  had 
never  been  in  the  military  or  naval  service,  and  the  grand  jury  of 
the  district  had  met,  after  he  had  been  arrested,  for  a  period  of 
twenty  days,  and  adjourned  without  taking  any  proceedings 
against  him,  then  the  court  had  the  right  to  entertain  his  petition 
and  determine  the  lawfulness  of  his  imprisonment.  Because  the 
word  "court"  is  not  found  in  the  body  of  the  second  section,  it 
was  argued  at  the  bar,  that  the  application  should  have  been  made 
to  a  judge  of  the  court,  and  not  to  the  court  itself;  but  this  is  not 
so,  for  power  is  expressly  conferred  in  the  last  proviso  of  the 
section  on  the  court  equally  with  a  judge  of  it  to  discharge  from 
imprisonment.  It  was  the  manifest  design  of  Congress  to  secure 
a  certain  remedy  by  which  any  one,  deprived  of  liberty,  could 
obtain  it,  if  there  was  a  judicial  failure  to  find  cause  of  offense 
against  him.  Courts  are  not,  always,  in  session,  and  can  adjourn 
on  the  discharge  of  the  grand  jury;  and  before  those  who  are  in 
confinement  could  take  proper  steps  to  procure  their  liberation. 
To  provide  for  this  contingency,  authority  was  given  to  the  judges 
out  of  court  to  grant  relief  to  any  party  who  could  show,  that, 
under  the  law,  he  should  be  no  longer  restrained  of  his  liberty. 

It  was  insisted  that  Milligan's  case  was  defective  because  it  did 
not  state  that  the  list  was  furnished  to  the  judges;  and,  there- 
fore, it  was  impossible  to  say  under  which  section  of  the  act  it 
was  presented. 

It  is  not  easy  to  see  how  this  omission  could  affect  the  ques- 
tion of  jurisdiction.  Milligan  could  not  know  that  the  list  was 
furnished,  unless  the  judges  volunteered  to  tell  him;  for  the  law 
did  not  require  that  any  record  should  be  made  of  it  or  anybody 
but  the  judges  informed  of  it.  Why  aver  the  fact  when  the  truth 
of  the  matter  was  apparent  to  the  court  without  an  averment? 
How  can  ]\Iilligan  be  harmed  by  the  absence  of  the  averment,  when 
he  states  that  he  was  under  arrest  for  more  than  sixty  days  before 
the  court  and  grand  jury,  which  should  have  considered  his  case, 
met  at  Indianapolis?  It  is  apparent,  therefore,  that  under  the 
Habeas  Corpus  Act  of  1863  the  Circuit  Court  of  Indiana  had  com- 


360  CASES   ON  CONSTITUTIONAL   LAW. 

plete  jurisdiction  to  adjudicate  upon  this  case,  and,  if  the  judges 
could  not  agree  on  questions  vital  to  the  progress  of  the  cause, 
they  had  the  authority  (as  we  have  shown  in  a  previous  part  of 
this  opinion),  and  it  was  their  duty  to  certify  those  questions  of 
disagreement  to  this  court  for  final  decision.  It  was  argued  tha> 
a  final  decision  on  the  questions  presented  ought  not  to  be  madr, 
because  the  parties  who  were  directly  concerned  in  the  arrest  and 
detention  of  Milligan,  were  not  before  the  court;  and  their  rights 
might  be  prejudiced  by  the  answer  which  should  be  given  to  those 
questions.  But  this  court  cannot  know  what  return  will  be  made 
to  the  writ  of  habeas  corpus  when  issued;  and  it  is  very  clear  that 
no  one  is  concluded  upon  any  question  that  may  be  raised  to  that 
return.  In  the  sense  of  the  law  of  1802  which  authorized  a  certifi- 
cate of  division,  a  final  decision  means  final  upon  the  points 
certified;  final  upon  the  court  below,  so  that  it  is  estopped  from 
any  adverse  ruling  in  all  the  subsequent  proceedings  of  the  cause. 

But  it  is  said  that  this  case  is  ended,  as  the  presumption  is,  that 
Milligan  was  hanged  in  pursuance  of  the  order  of  the  President. 

Although  we  have  no  judicial  information  on  the  subject,  yet 
the  inference  is  that  he  is  alive;  for  otherwise  learned  counsel 
would  not  appear  for  him  and  urge  this  court  to  decide  .his  case. 
It  can  never  be  in  this  country  of  ^vritten  constitution  and  laws, 
with  a  judicial  department  to  interpret  them,  that  any  chief 
magistrate  would  be  so  far  forgetful  of  his  duty,  as  to  order  the 
execution  of  a  man  who  denied  the  jurisdiction  that  tried  and  con- 
victed him;  after  his  case  was  before  Federal  judges  with  power 
to  decide  it,  who,  being  unable  to  agree  on  the  grave  questions 
involved,  had,  according  to  known  law,  sent  it  to  the  Supreme 
Court  of  the  United  States  for  decision.  But  even  the  suggestion 
is  injurious  to  the  Executive,  and  we  dismiss  it  from  further  con- 
sideration. There  is,  therefore,  nothing  to  hinder  this  court  from 
an  investigation  of  the  merits  of  this  controversy. 

The  controlling  question  in  the  case  is  this:  Upon  the  facts 
stated  in  Milligan's  petition,  and  the  exhibits  filed,  had  the  mili- 
tary commission  mentioned  in  it  jurisdiction,  legally,  to  try  and 
sentence  him?  Milligan,  not  a  resident  of  one  of  the  rebellious 
States,  or  a  prisoner  of  war,  but  a  citizen  of  Indiana  for  twenty 
years  past,  and  never  in  the  military  or  naval  service,  is,  while  at 
his  home,  arrested  by  the  military  power  of  the  United  States,  im- 
prisoned, and,  on  certain  criminal  charges  preferred  against  him, 
tried,  convicted,  and  sentenced  to  be  hanged  by  a  military  commis- 
sion, organized  under  the  direction  of  the  military  commander  of 


EX  PARTE  MILLIGAN.  361 

the  military  district   of   Indiana.     Had  this  tribunal  the  legal 
power  and  authority  to  try  and  punish  this  man? 

No  graver  question  was  ever  considered  by  this  court,  nor  one 
which  more  nearly  concerns  the  rights  of  the  whole  people;  for  it 
is  the  birthright  of  every  American  citizen  when  charged  with 
crime,  to  be  tried  and  punished  according  to  law.  The  power  of 
punishment  is  alone  through  the  means  which  the  laws  have  pro- 
vided for  that  purpose,  and  if  they  are  ineffectual,  there  is  an  im- 
munity from  punishment,  no  matter  how  great  an  offender  the 
individual  may  be,  or  how  much  his  crimes  may  have  shocked  the 
sense  of  justice  of  the  country,  or  endangered  its  safety.  By  the 
protection  of  the  law  human  rights  are  secured;  withdraw  that 
protection,  and  they  are  at  the  mercy  of  wicked  rulers,  or  the 
clamor  of  an  excited  people.  If  there  was  law  to  justify  this  mili- 
tary trial,  it  is  not  our  province  to  interfere;  if  there  was  not,  it  is 
our  duty  to  declare  the  nullity  of  the  whole  proceedings.  The 
decision  of  this  question  does  not  depend  on  argument  or  judicial 
precedents,  numerous  and  highly  illustrative  as  they  are.  These 
precedents  inform  us  of  the  extent  of  the  struggle  to  preserve 
liberty,  and  to  relieve  those  in  civil  life  from  military  trials.  The 
founders  of  our  government  were  familiar  with  the  history  of  that 
struggle,  and  secured  in  a  written  Constitution  every  right  which 
the  people  had  wrested  from  power  during  a  contest  of  ages.  By 
that  Constitution  and  the  laws  authorized  by  it  this  question  must 
be  determined.  The  provisions  of  that  instrument  on  the  admin- 
istration of  criminal  justice  are  too  plain  and  direct  to  leave  room 
for  misconstruction  or  doubt  of  their  true  meaning.  Those  applica- 
ble to  this  case  are  found  in  that  clause  of  the  original  Constitution 
which  says,  "That  the  trial  of  all  crimes,  except  in  case  of  im- 
peachment, shall  be  by  jury;"  and  in  the  fourth,  fifth,  and  sixth 
articles  of  the  amendments.  The  fourth  proclaims  the  right  to 
be  secure  in  person  and  effects  against  unreasonable  search  and 
seizure;  and  directs  that  a  judicial  warrant  shall  not  issue  "with- 
out proof  of  probable  cause  supported  by  oath  or  affirmation." 
The  fifth  declares  "that  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime  unless  on  presentment  by  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or 
in  the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger,  nor  be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law."  And  the  sixth  guarantees  the  right  of  trial  by 
jury,  in  such  manner  and  with  such  regulations  that  with  up- 
right judges,  impartial  juries,  and  an  able  bar,  the  innocent  will 
be  saved  and  the  guilty  punished.    It  is  in  these  words:    "In  all 


362  CASES  ON  CONSTITUTIONAL  LAW. 

criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  tlie  accusation,  to  be  confronted  with  the 
witnesses  against  him,  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for 
his  defense/'  These  securities  for  personal  liberty  thus  embodied, 
were  such  as  wisdom  and  experience  had  demonstrated  to  be  nec- 
essary for  the  protection  of  those  accused  of  crime.  And  so  strong 
was  the  sense  of  the  country  of  their  importance,  and  so  jealous 
were  the  people  that  these  rights,  highly  prized,  might  be  denied 
them  by  implication,  that  when  the  original  Constitution  was  pro- 
posed for  adoption  it  encountered  severe  opposition;  and,  but  for 
the  belief  that  it  would  be  so  amended  as  to  embrace  them,  it 
would  never  have  been  ratified. 

Time  has  proven  the  discernment  of  our  ancestors;  for  even 
these  provisions,  expressed  in  such  plain  English  words,  that  it 
would  seem  the  ingenuity  of  man  could  not  evade  them,  are  now, 
after  the  lapse  of  more  than  seventy  years,  sought  to  be  avoided.. 
Those  great  and  good  men  foresaw  that  troublous  times  would 
arise,  when  rulers  and  people  would  become  restive  under  re- 
straint, and  seek  by  sharp  and  decisive  measures  to  accomplish 
ends  deemed  just  and  proper;  and  that  the  principles  of  consti- 
tutional liberty  would  be  in  peril,  unless  established  by  irre- 
pealable  law.  The  history  of  the  world  had  taught  them  that 
what  was  done  in  the  past  might  be  attempted  in  the  future.  The 
Constitution  of  the  United  States  is  a  law  for  rulers  and  people, 
equally  in  war  and  in  peace,  and  covers  with  the  shield  of  its  pro- 
tection all  classes  of  men,  at  all  times,  and  under  all  circum- 
stances. No  doctrine  involving  more  pernicious  consequences  was 
ever  invented  by  the  wit  of  man  than  that  any  of  its  provisions 
can  be  suspended  during  any  of  the  great  exigencies  of  govern- 
ment. Such  a  doctrine  leads  directly  to  anarchy  or  despotism, 
but  the  theory  of  necessity  on  which  it  is  based  is  false;  for  the 
government,  within  the  Constitution,  has  all  the  powers  granted 
to  it  which  are  necessary  to  preserve  its  existence;  as  has  been 
happily  proved  hy  the  result  of  the  great  effort  to  throw  off  its 
just  authority. 

Have  any  of  the  rights  guaranteed  by  the  Constitution  been 
violated  in  the  case  of  Milligan?   and  if  so,  what  are  they? 

Every  trial  involves  the  exercise  of  judicial  power;  and  from 
what  source  did  the  military  commission  that  tried  him  derive 


EX  PARTE  MILLIGAN.  363 

their  authority?  Certainly  no  part  of  the  judicial  power  of  the 
country  was  conferred  on  them;  because  the  Constitution  ex- 
pressly vests  it  "in  one  supreme  court  and  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  establish,"  and 
it  is  not  pretended  that  the  commission  was  a  court  ordained  and 
established  by  Congress.  They  cannot  justify  on  the  mandate  of 
the  President,  because  he  is  controlled  by  law,  and  has  his  appro- 
priate sphere  of  duty,  which  is  to  execute,  not  to  make,  the  laws; 
and  there  is  "no  unwritten  criminal  code  to  which  resort  can 
be  had  as  a  source  of  jurisdiction." 

But  it  is  said  that  the  jurisdiction  is  complete  under  the  "laws 
and  usages  of  war." 

/  It  can  serve  no  useful  purpose  to  inquire  what  those  laws  and 
AOisages  are,  whence  they  originated,  where  found,  and  on  whom 
they  operate;  they  can  never  be  applied  to  citizens  in  States  which 
have  upheld  the  authority  of  the  government,  and  where  the  courts 
are  open  and  their  process  unobstructed.  This  court  has  judicial 
knowledge  that  in  Indiana  the  Federal  authority  was  always  un- 
opposed, and  its  courts  always  open  to  hear  criminal  accusations 
and  redress  grievances;  and  no  usage  of  war  could  sanction  a  mili- 
tary trial  there  for.  any  offense  whatever  of  a  citizen  in  civil  life, 
in  nowise  connected  with  the  military  service.  Congress  could 
grant  no  such  power;  and  to  the  honor  of  our  national  legislature 
be  it  said,  it  has  ijever  been  provoked  by  the  state  of  the  country 
even  to  attempt  its  exercise.  One  of  the  plainest  constitutional 
provisions  was,  therefore,  infringed  when  Milligan  was  tried  by  a 
court  not  ordained  and  established  by  Congress,  and  not  com- 
posed of  judges  appointed  during  good  behavior. 

Why  was  he  not  delivered  to  the  Circuit  Court  of  Indiana  to 
be  proceeded  against  according  to  law?  No  reason  of  necessity 
could  be  urged  against  it;  because  Congress  had  declared  penal- 
ties against  the  offenses  charged,  provided  for  their  punishment, 
and  directed  that  court  to  hear  and  determine  them.  And  soon 
after  this  military  tribunal  was  ended,  the  Circuit  Court  met, 
peacefully  transacted  its  business,  and  adjourned.  It  needed  no 
bayonets  to  protect  it,  and  required  no  military  aid  to  execute  its 
judgments.  It  was  held  in  a  State,  eminently  distinguished  for 
patriotism,  by  judges  commissioned  during  the  Eebellion,  who 
were  provided  with  juries,  upright,  intelligent,  and  selected  by  a 
marshal  appointed  by  the  President.  The  government  had  no 
right  to  conclude  that  Milligan,  if  guilty,  would  not  receive  in 
that  court  merited  punishment;  for  its  records  disclose  that  it 
was  constantly  engaged  in  the  trial  of  similar  offenses,  and  was 


364  CASES  ON  CONSTITUTIONAL  LAW. 

never  interrupted  in  its  administration  of  criminal  justice.  If  it 
was  dangerous,  in  the  distracted  condition  of  affairs,  to  leave  Mil- 
ligan  unrestrained  of  his  liberty,  because  he  "conspired  against 
the  government,  afforded  aid  and  comfort  to  rebels,  and  incited 
the  people  to  insurrection,"  the  law  said,  arrest  him,  confine  him 
closely,  render  him  powerless  to  do  further  mischief;  and  then 
present  his  case  to  the  grand  jury  of  the  district,  with  proofs  of 
his  guilt,  and,  if  indicted,  try  him  according  to  the  course  of  the 
common  law.  If  this  had  been  done,  the  Constitution  would 
have  been  vindicated,  the  law  of  1863  enforced,  and  the  securi- 
ties for  personal  liberty  preserved  and  defended. 

Another  guarantee  of  freedom  was  broken  when  Milligan  was 
denied  a  trial  by  jury.  The  great  minds  of  the  country  have  dif- 
fered on  the  correct  interpretation  to  be  given  to  the  various  pro- 
visions of  the  Federal  Constitution;  and  judicial  decision  has  been 
often  invoked  to  settle  their  true  meaning;  but  until  recently 
no  one  ever  doubted  that  the  right  of  trial  by  jury  was  fortified 
in  the  organic  law  against  the  power  of  attack.  It  is  now  as- 
sailed; but  if  ideas  can  be  expressed  in  words,  and  language  has 
any  meaning,  this  right — one  of  the  most  valuable  in  a  free 
country — is  preserved  to  every  one  accused  of  crime  who  is  not 
attached  to  the  army,  or  navy,  or  militia  in  actual  service.  The 
sixth  amendment  affirms  that  "in  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  jury," — language  broad  enough  to  embrace  all  persons 
and  cases;  but  the  fifth,  recognizing  the  necessity  of  an  indict- 
ment, or  presentment,  before  any  one  can  be  held  to  answer  for 
high  crimes,  "excepts  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service,  in  time  of  war  or  public 
danger;"  and  the  framers  of  the  Constitution,  doubtless,  meant 
to  limit  the  right  of  trial  by  jury,  in  the  sixth  amendment,  to 
those  persons  who  were  subject  to  indictment  or  presentment 
in  the  fifth. 

The  discipline  necessary  to  the  efficiency  of  the  army  and 
navy  required  other  and  swifter  modes  of  trial  than  are  furnished 
by  the  common-law  courts;  and,  in  pursuance  of  the  power  con- 
ferred by  the  Constitution,  Congress  has  declared  the  kinds  of 
trial,  and  the  manner  in  which  they  shall  be  conducted,  for  offenses 
committed  while  the  party  is  in  the  military  or  naval  service. 
Every  one  connected  with  these  branches  of  the  public  service  is 
amenable  to  the  jurisdiction  which  Congress  has  created  for  !heir 
government,  and,  while  thus  serving,  surrenders  his  right  to  be 
tried  by  the  civil  courts.     All  other  persons,  citizens  of  States 


EX  PARTE  MILLIGAN.  3G5 

where  the  courts  are  open,  if  charged  with  crime,  are  guaranteed 
the  inestimable  privilege  of  trial  by  jury.  This  privilege  is  a  vital 
principle,  underlying  the  whole  administration  of  criminal  jus- 
tice; it  is  not  held  by  sufferance,  and  cannot  be  frittered  away 
on  any  plea  of  State  or  political  necessity.  When  peace  prevails, 
and  the  authority  of  the  government  is  undisputed,  there  is  no 
difficulty  of  preserving  the  safeguards  of  liberty;  for  the  ordinary 
modes  of  trial  are  never  neglected,  and  no  one  wishes  it  other- 
wise; but  if  society  is  disturbed  by  civil  commotion — if  the  pas- 
sions of  men  are  aroused  and  the  restraints  of  law  weakened,  if 
not  disregarded — these  safeguards  need,  and  should  receive,  the 
watchful  care  of  those  intrusted  with  the  guardianship  of  the 
Constitution  and  laws.  In  no  other  way  can  we  transmit  to  pos- 
terity unimpaired  the  blessings  of  liberty,  consecrated  by  the 
sacrifices  of  the  Revolution. 

It  is  claimed  that  martial  law  covers  with  its  broad  mantle  the 
proceedings  of  this  military  commission.  The  proposition  is  this: 
that  in  a  time  of  war  the  commander  of  an  armed  force  (if,  in  his 
opinion,  the  exigencies  of  the  country  demand  it,  and  of  which 
he  is  the  judge)  has  the  power,  within  the  lines  of  his  military 
district,  to  suspend  all  civil  rights  and  their  remedies,  and  subject 
citizens  as  well  as  soldiers  to  the  rule  of  his  will;  and  in  the 
exercise  of  his  lawful  authority  cannot  be  restrained,  except  by 
his  superior  officer  or  the  President  of  the  United  States. 

If  this  position  is  sound  to  the  extent  claimed,  then  when  war 
exists,  foreign  or  domestic,  and  the  country  is  subdivided  into 
military  departments  for  mere  convenience,  the  commander  of  one 
of  them  can,  if  he  chooses,  within  his  limits,  on  the  plea  of 
necessity,  with  the  approval  of  the  Executive,  substitute  mili- 
tary force  for,  and  to  the  exclusion  of,  the  laws,  and  punish  all 
persons,  as  he  thinks  right  and  proper,  without  fixed  or  certain 
rules. 

The  statement  of  this  proposition  shows  its  importance;  for, 
if  true,  republican  government  is  a  failure,  and  there  is  an  end 
of  liberty  regulated  by  law.  Martial  law,  established  on  such  a 
basis,  destroys  every  guarantee  of  the  Constitution,  and  effectually 
renders  the  "military  independent  of,  and  superior  to,  the  civil 
power," — ^the  attempt  to  do  which  by  the  King  of  Great  Britain 
was  deemed  by  our  fathers  such  an  offense,  that  they  assigned  it 
to  the  world  as  one  of  the  causes  which  impelled  them  to  declare 
their  independence.  Civil  liberty  and  this  kind  of  martial  law 
cannot  endure  together;  the  antagonism  is  irreconcilable;  and, 
in  the  conflict,  one  or  the  other  must  perish. 


366  CASES  ON  CONSTITUTIONAL  LAW. 

This  nation,  as  experience  has  proved,  cannot  always  remain  at 
peace,  and  has  no  right  to  expect  that  it  will  always  have  wise 
and  humane  rulers,  sincerely  attached  to  the  principles  of  the 
Constitution.  Wicked  men,  ambitious  of  power,  with  hatred  of 
liberty  and  contempt  of  law,  may  fill  the  place  once  occupied 
by  Washington  and  Lincoln;  and  if  this  right  is  conceded,  and 
the  calamities  of  war  again  befall  us,  the  dangers  to  human  'lib- 
erty are  frightful  to  contemplate.  If  our  fathers  had  failed  to 
provide  for  just  such  a  contingency,  they  would  have  been  false 
to  the  trust  reposed  in  them.  They  knew — the  history  of  the 
world  told  them — the  nation  they  were  founding,  be  its  existence 
short  or  long,  would  be  involved  in  war;  how  often  or  how  long 
continued,  human  foresight  could  not  tell;  and  that  unlimited 
power,  wherever  lodged  at  such  a  time,  was  especially  hazardous 
to  freemen.  For  this,  and  other  equally  weighty  reasons,  they 
secured  the  inheritance  they  had  fought  to  maintain,  by  incor- 
porating in  a  written  Constitution  the  safeguards  which  time  had 
proved  were  essential  to  its  preservation.  Not  one  of  these  safe- 
guards can  the  President,  or  Congress,  or  the  Judiciary  disturb, 
except  the  one  concerning  the  writ  of  habeas  corpus. 

It  is  essential  to  the  safety  of  every  government  that  in  a  great 
crisis,  like  the  one  we  have  just  passed  through,  there  should  be 
a  power  somewhere  of  suspending  the  writ  of  habeas  corpus.  In 
every  war,  there  are  men  of  previously  good  character,  wicked 
enough  to  counsel  their  fellow-citizens  to  resist  the  measures 
deemed  necessary  by  a  good  government  to  sustain  its  just  author- 
ity and  overthrow  its  enemies;  and  their  influence  may  lead  to 
dangerous  combinations.  In  the  emergency  of  the  times,  an  im- 
mediate public  investigation  according  to  law  may  not  be  pos- 
sible; and  yet  the  peril  to  the  country  may  be  too  imminent  to 
suffer  such  persons  to  go  at  large.  Unquestionably,  there  is  then 
an  exigency  which  demands  that  the  government,  if  it  should 
see  fit,  in  the  exercise  of  a  proper  discretion,  to  make  arrests,  should 
not  be  required  to  produce  the  persons  arrested  in  answer  to  a 
writ  of  habeas  corpus.  The  Constitution  goes  no  further.  It  does 
not  say  after  a  writ  of  habeas  corpus  is  denied  a  citizen,  that  he 
shall  be  tried  otherwise  than  by  the  course  of  the  common  law; 
if  it  had  intended  this  result,  it  was  easy  by  the  use  of  direct 
words  to  have  accomplished  it.  The  illustrious  men  who  framed 
that  instrument  were  guarding  the  foundations  of  civil  liberty 
against  the  abuses  of  unlimited  power;  they  were  full  of  wisdom, 
and  the  lessons  of  history  informed  them  that  a  trial  by  an  estab- 
lished court,  asisted  by  an  impartial  jury,  was  the  only  sure  way 


EX  PARTE  MILLIGAN.  .  367 

of  protecting  the  citizen  against  oppression  and  wrong.  Know- 
ing this,  they  limited  the  suspension  to  one  great  right,  and  left 
the  rest  to  remain  forever  inviolable.  But,  it  is  insisted  that  the 
safety  of  the  country  in  time  of  war  demands  that  this  broad 
claim  for  martial  law  shall  be  sustained.  If  this  were  true,  it 
could  be  well  said  that  a  country,  preserved  at  the  sacrifice  of  all 
the  cardinal  principles  of  liberty,  is  not  worth  the  cost  of  preserva- 
tion.    Happily,  it  is  not  so. 

It  will  be  borne  in  mind  that  this  is  not  a  question  of  the  power 
to  proclaim  martial  law,  when  war  exists  in  a  community  and 
the  courts  and  civil  authorities  are  overthrown.  Nor  is  it  a  ques- 
tion what  rule  a  military  commander,  at  the  head  of  his  army, 
can  impose  on  States  in  rebellion  to  cripple  their  resources  and 
quell  the  insurrection.  The  Jurisdiction  claimed  is  much  more 
extensive.  The  necessities  of  the  service,  during  the  late  Eebel- 
lion,  required  that  the  loyal  States  should  be  placed  within  the 
limits  of  certain  military  districts  and  commanders  appointed  in 
them;  and,  it  is  urged,  that  this,  in  a  military  sense,  constituied 
them  the  theatre  of  military  operations;  and,  as  in  this  case, 
Indiana  had  been  and  was  again  threatened  with  invasion  by  the 
enemy,  the  occasion  was  furnished  to  establish  martial  law.  The 
conclusion  does  not  follow  from  the  premises.  If  armies  were 
collected  in  Indiana,  they  were  to  be  employed  in  another  locality, 
where  the  laws  were  obstructed  and  the  national  authority  dis- 
puted. On  her  soil  there  was  no  hostile  foot;  if  once  invaded, 
that  invasion  was  at  an  end,  and  with  it  all  pretext  for  martial 
law.  Martial  law  cannot  arise  from  a  threatened  invasion.  The 
necessity  must  be  actual  and  present;  the  invasion  real,  such  as 
effectually  closes  the  courts  and  deposes  the  civil  administra- 
tion. 

It  is  difficult  to  see  how  the  safety  of  the  country  required  mar- 
tial law  in  Indiana.  If  any  of  her  citizens  were  plotting  treason, 
the  power  of  arrest  could  secure  them,  until  the  government  was 
prepared  for  their  trial,  when  the  courts  were  open  and  ready  to 
try  them.  It  was  as  easy  to  protect  witnesses  before  a  civil  as  a 
military  tribunal;  and  as  there  could  be  no  wish  to  convict, 
except  on  sufficient  legal  evidence,  surely  an  ordained  and  estab- 
lished court  was  better  able  to  judge  of  this  than  a  military 
tribunal  composed  of  gentlemen  not  trained  to  the  profession  of 
the  law. 

It  follows,  from  what  has  been  said  on  this  subject,  that  (there 
are  occasions  when  martial  rule  can  be  properly  applied.  If,  in 
foreign  invasion  or  civil  war,  the  courts  are  actually  closed,  and 


3G8  CASES  ON  CONSTITUTIONAL  LAW. 

it  is  impossible  to  administer  criminal  justice  according  to  law, 
then,  on  the  theatre  of  active  military  operations,  where  war 
really  prevails,  there  is  a  necessity  to  furnish  a  substitute  for  the 
civil  authority,  thus  overthrown,  to  preserve  the  safety  of  the 
army  and  society;  and  as  no  power  is  left  but  the  military,  it  is 
allowed  to  govern  by  martial  rule  until  the  laws  can  have  their 
free  course.  As  necessity  creates  the  rule,  so  it  limits  its  dura- 
tion; for,  if  this  government  is  continued  after  the  courts  are 
reinstated,  it  is  a  gross  usurpation  of  power.  Martial  rule  can 
never  exist  where  the  courts  are  open,  and  in  the  proper  and 
unobstructed  exercise  of  their  jurisdiction.  It  is  also  confined 
to  the  locality  of  actual  war.  Because,  during  the  late  Rebel- 
lion it  could  have  been  enforced  in  Virginia,  where  the  national 
authority  was  overturned  and  the  courts  driven  out,  it  does  not 
follow  that  it  should  obtain  in  Indiana,  where  that  authority  was 
never  disputed,  and  justice  was  always  administered.  And  so 
in  the  case  of  a  foreign  invasion,  martial  rule  may  become  a  neces- 
sity in  one  State,  when,  in  another,  it  would  be  "mere  lawless 
violence." 

We  are  not  without  precedents  in  English  and  American  his- 
tory illustrating  our  views  of  this  question;  but  it  is  hardly  neces- 
sary to  make  particular  reference  to  them. 

From  the  first  year  of  the  reign  of  Edward  the  Third,  when 
the  Parliament  of  England  reversed  the  attainder  of  the  Earl 
of  Lancaster,  because  he  could  have  been  tried  by  the  courts 
of  the  realm,  and  declared,  "that  in  time  of  peace  no  man  ought 
to  be  adjudged  to  death  for  treason  or  any  other  offense  with- 
out being  arraigned  and  held  to  answer;  and  that  regularly  when 
the  king's  courts  are  open  it  is  a  time  of  peace  in  judgment  of 
law,"  down  to  the  present  day,  martial  law,  as  claimed  in  this 
case,  has  been  condemned  by  all  respectable  English  jurists  as 
contrary  to  the  fundamental  laws  of  the  land,  and  subversive  of 
the  liberty  of  the  subject. 

During  the  present  century,  an  instructive  debate  on  this  ques- 
tion occurred  in  Parliament,  occasioned  by  the  trial  and  convic- 
tion by  court-martial,  at  Demerara,  of  the  Rev.  John  Smith,  a 
missionary  to  the  negroes,  on  ihe  alleged  ground  of  aiding  and 
abetting  a  formidable  rebellion  in  that  colony.  Those  eminent 
statesmen.  Lord  Brougham  and  Sir  James  Mackintosh,  partici- 
pated in  that  debate;  and  denounced  the  trial  as  illegal;  because 
it  did  not  appear  that  the  courts  of  law  in  Demerara  could  not  try 
offenses,  and  that  "when  the  laws  can  act,  every  other  mode 
of  punishing  supposed  crimes  is  itself  an  enormous  crime." 


EX  PARTE  MILLIGAN.  369 

So  sensitive  were  our  Kevolutionary  fathers  on  this  subject, 
although  Boston  was  almost  in  a  state  of  siege,  when  General 
Gage  issued  his  proclamation  of  martial  law  they  spoke  of  it 
as  an  "attempt  to  supersede  the  course  of  the  common  law,  and 
instead  thereof  to  publish  and  order  the  use  of  martial  law."  The 
Virginia  Assembly,  also,  denounced  a  similar  measure  on  the  part 
of  Governor  Dunmore  "as  an  assumed  power,  which  the  king 
himself  cannot  exercise;  because  it  annuls  the  law  of  the  land 
and  introduces  the  most  execrable  of  all  systems,  martial  law." 

In  some  parts  of  the  country,  during  the  war  of  1812,  our 
officers  made  arbitrary  arrests  and,  by  military  tribunals,  tried 
citizens  who  were  not  in  the  military  service.  These  arrests  and 
trials,  when  brought  to  the  notice  of  the  courts,  were  uniformly 
condemned  as  illegal.  The  cases  of  Smith  v.  Shaw,  and  McCon- 
nell  V.  Hampden  (reported  in  12  Johnson,)^  are  illustrations, 
which  we  cite,  not  only  for  the  principles  they  determine,  but  on 
account  of  the  distinguished  jurists  concerned  in  the  decisions, 
one  of  whom  for  many  years  occupied  a  seat  on  this  bench. 

It  is  contended,  that  Luther  v.  Borden,  decided  by  this  court, 
is  an  authority  for  the  claim  of  martial  law  advanced  in  this  case. 
The  decision  is  misapprehended.  That  case  grew  out  of  the  at- 
tempt in  Rhode  Island  to  supersede  the  old  colonial  government 
by  a  revolutionary  proceeding.  Rhode  Island,  until  that  period, 
had  no  other  form  of  local  government  than  the  charter  granted 
by  King  Charles  II  in  1663;  and  as  that  limited  the  right  of 
suffrage,  and  did  not  provide  for  its  own  amendment,  many  citi- 
zens became  dissatisfied,  because  the  legislature  would  not  afford 
the  relief  in  their  power;  and  without  the  authority  of  law, 
formed  a  new  and  independent  constitution,  and  proceeded  to 
assert  its  authority  by  force  of  arms.  The  old  government  re- 
sisted this;  and  as  the  rebellion  was  formidable,  called  out  the 
militia  to  subdue  it,  and  passed  an  act  declaring  martial  law.  Bor- 
den, in  the  military  service  of  the  old  government,  broke  open 
the  house  of  Luther,  who  supported  the  new,  in  order  to  arrest 
him.  Luther  brought  suit  against  Borden;  and  the  question 
was,  whether,  under  the  constitution  and  laws  of  the  state,  Borden 
was  justified.  This  court  held  that  a  state  "may  use  its  mili- 
tary power  to  put  down  an  armed  insurrection  too  strong  to  be 
controlled  by  the  civil  authority;"  and,  if  the  legislature  of  Rhode 
Island  thought  the  peril  so  great  as  to  require  the  use  of  its 
military  forces  and  the  declaration  of  martial  law,  there  was  no 

1  Pages  257  and  234. 
24 


370  CASES  ON  CONSTITUTIONAL  LAW. 

ground  on  which  this  court  could  question  its  authority;  and  as 
Borden  acted  under  military  orders  of  the  charter  government, 
which  had  been  recognized  by  the  political  power  of  the  coun- 
try, and  was  upheld  b)--  the  state  judiciary,  he  was  justified  in 
breaking  into  and  entering  Luther's  house.  This  is  the  extent  of 
the  decision.  There  was  no  question  in  issue  about  the  power  of 
declaring  martial  law  under  the  Federal  Constitution,  and  the 
court  did  not  consider  it  necessary  even  to  inquire  "to  what  extent 
nor  under  what  circumstances  that  power  may  be  exercised  by 
a  state." 

We  do  not  deem  it  important  to  examine  further  the  adjudged 
cases;  and  shall,  therefore,  conclude  without  any  additional  refer- 
ence to  authorities. 

To  the  third  question,  then,  on  which  the  judges  below  were 
opposed  in  opinion,  an  answer  in  the  negative  must  be  returned. 

It  is  proper  to  say,  although  Milligan's  trial  and  conviction 
by  a  military  commission  was  illegal,  yet,  if  guilty  of  the  crimes 
imputed  to  him,  and  his  guilt  had  been  ascertained  by  an  estab- 
lished court  and  impartial  jury,  he  deserved  severe  punishment. 
Open  resistance  to  the  measures  deemed  necessary  to  subdue  a 
great  rebellion,  by  those  who  enjoy  the  protection  of  government, 
and  have  not  the  excuse  even  of  prejudice  of  section  to  plead  in 
their  favor,  is  wicked;  but  that  resistance  becomes  an  enormous 
crime  when  it  assumes  the  form  of  a  secret  political  organiza- 
tion, armed  to  oppose  the  laws,  and  seeks  by  stealthy  means  to 
introduce  the  enemies  of  the  country  into  peaceful  communities, 
there  to  light  the  torch  of  civil  war,  and  thus  overthrow  the  power 
of  the  United  States.  Conspiracies  like  these,  at  such  a  junc- 
ture, are  extremely  perilous;  and  those  concerned  in  them  are 
dangerous  enemies  to  their  country,  and  should  receive  the  heav- 
iest penalties  of  the  law,  as  an  example  to  deter  others  from  sim- 
ilar criminal  conduct.  It  is  said  the  severity  of  the  laws  caused 
them;  but  Congress  was  obliged  to  enact  severe  laws  to  meet 
the  crisis;  and  as  our  highest  civil  duty  is  to  serve  our  country 
when  in  danger,  the  late  war  has  proved  that  rigorous  laws,  when 
necessary,  will  be  cheerfully  obeyed  by  a  patriotic  people,  strug- 
gling to  preserve  the  rich  blessings  of  a  free  government. 

The  two  remaining  questions  in  this  case  must  be  answered 
in  the  affirmative.  The  suspension  of  the  privilege  of  the  writ 
of  habeas  corpus  does  not  suspend  the  writ  itself.  The  writ  issues 
as  a  matter  of  course;  and  on  the  return  made  to  it  the  court 
decides  whether  the  party  applying  is  denied  the  right  of  pro- 
ceeding any  further  with  it. 


EX  PARTE  MILLIGAN.  371 

If  the  military  trial  of  Milligan  was  contrary  to  law,  then  ne 
was  entitled,  on  the  facts  stated  in  his  petition,  to  be  discharged 
from  custody  by  the  terms  of  the  act  of  Congress  of  March  3, 
1863.  The  provisions  of  this  law  having  been  considered  in  a 
previous  part  of  this  opinion,  we  will  not  restate  the  views  there 
presented.  Milligan  avers  he  was  a  citizen  of  Indiana,  not  in  the 
military  or  naval  service,  and  was  detained  in  close  confinement, 
by  order  of  the  President,  from  the  5th  day  of  October,  1864, 
until  the  2d  day  of  January,  1865,  when  the  Circuit  Court  for  the 
District  of  Indiana,  with  a  grand  jury,  convened  in  session  at 
Indianapolis;  and  afterwards,  on  the  27th  day  of  the  same  month, 
adjourned  without  finding  an  indictment  or  presentment  against 
him.  If  these  averments  were  true  (and  their  truth  is  conceded 
for  the  purposes  of  this  case),  the  court  was  required  to  liberate 
him  on  taking  certain  oaths  prescribed  by  the  law,  and  entering 
into  recognizance  for  his  good  behavior. 

But  it  is  insisted  that  Milligan  was  a  prisoner  of  war,  and,  there- 
fore, excluded  from  the  privileges  of  the  statute.  It  is  not  easy 
to  see  how  he  can  be  treated  as  a  prisoner  of  war,  when  he  lived 
in  Indiana  for  the  past  twenty  years,  was  arrested  there,  and  had 
not  been,  during  the  late  troubles,  a  resident  of  any  of  the  states 
in  rebellion.  If  in  Indiana  he  conspired  with  bad  men  to  assist 
the  enemy,  he  is  punishable  for  it  in  the  courts  of  Indiana;  but, 
when  tried  for  the  offense,  he  cannot .  plead  the  rights  of  war; 
for  he  was  not  engaged  in  legal  acts  of  hostility  against  the  gov- 
ernment, and  only  such  persons,  when  captured,  are  prisoners  of 
war.  If  he  cannot  enjoy  the  immunities  attaching  to  the  charac- 
ter of  a  prisoner  of  war,  how  can  he  be  subject  to  their  pains 
and  penalties? 

This  case,  as  well  as  the  kindred  cases  of  Bowles  and  Horsey, 
were  disposed  of  at  the  last  term,  and  the  proper  orders  were 
entered  of  record.  There  is,  therefore,  no  additional  entry  re- 
quired. 

[The  Chief  Justice,  for  himself  and  Messrs.  Justices 
Wayne,  SwAYNE,and  Miller,  delivered  an  opinion  in  which  he 
differed  from  the  court  in  several  important  particulars,  but  con- 
curred in  the  order  made  in  the  case.] 


IX.    EX  POST  FACTO  LAWS  AND  BILLS 
OF  ATTAINDER. 


CALDER  V.   BULL. 
3  Dallas,  386.    Decided  1798. 

In  error  from  the  State  of  Connecticut.  The  cause  was  ar^ed 
at  the  last  term  (in  the  absence  of  the  chief  justice),  and  now 
the  court  delivered  their  opinions  seriatim. 

Chase,  J.  The  decision  of  one  question  determines,  in  my 
opinion,  the  present  dispute.  I  shall,  therefore,  state  from  the 
record  no  more  of  the  case  than  I  think  necessary  for  the  con- 
sideration of  that  question  only. 

The  legislature  of  Connecticut,  on  the  second  Thursday  of  May, 
1795,  passed  a  resolution  or  law,  which,  for  the  reasons  assigned, 
set  aside  a  decree  of  the  court  of  probate  for  Hartford,  on  the  21st 
of  March,  1793,  which  decree  disapproved  of  the  will  of  Normand 
Morrison,  the  grandson,  made  the  21st  of  August,  1779,  and  re- 
fused to  record  the  said  will;  and  granted  a  new  hearing  by  the 
said  court  of  probate,  with  liberty  of  appeal  therefrom,  in  six 
months.  A  new  hearing  was  had,  in  virtue  of  this  resolution,  or 
law,  before  the  said  court  of  probate,  who,  on  the  27th  of  July, 
1795,  approved  the  said  will,  and  ordered  it  to  be  recorded.  At 
August,  1795,  appeal  was  then  had  to  the  superior  court  at  Hart- 
ford, who,  at  February  term,  1796,  affirmed  the  decree  of  the 
court  of  probate.  Appeal  was  had  to  the  supreme  court  of  errors 
of  Connecticut,  who,  in  June,  1796,  adjudged  that  there  were  no 
errors.  More  than  eighteen  months  elapsed  from  the  decree  of 
the  court  of  probate,  on  the  1st  of  March,  1793,  and  thereby 
Caleb  Bull  and  wife  were  barred  of  all  right  of  appeal,  by  a  statute 
of  Connecticut.  There  was  no  law  of  that  State  whereby  a  new 
hearing,  or  trial,  before  the  said  court  of  probate  might  be  ob- 
tained. Calder  and  wife  claim  the  premises  in  question,  in  right 
of  his  wife,  as  heiress  of  N.  Morrison,  physician;  Bull  and  wife 
claim  under  the  will  of  N".  Morrison,  the  grandson. 

The  counsel  for  the  plaintiffs  in  error  contend  that  the  said 

872 


CALDER  V.   BULL.  373 

resolution  or  law  of  the  legislature  of  Connecticut,  granting  a  new- 
hearing  in  the  above  case,  is  an  ex  post  facto  law,  prohibited 
by  the  constitution  of  the  United  States;  that  any  law  of  the 
federal  government,  or  of  any  of  the  state  governments,  contrary 
to  the  constitution  of  the  United  States,  is  void;  and  that  this 
court  possesses  the  power  to  declare  such  law  void. 

It  appears  to  me  a  self-evident  proposition,  that  the  several 
state  legislatures  retain  all  the  powers  of  legislation  delegated  to 
them  by  the  state  constitutions,  which  are  not  expressly  taken 
away  by  the  consititution  of  the  United  States.  The  establish- 
ing courts  of  justice,  the  appointment  of  Judges,  and  the  making 
regulations  for  the  administration  of  justice  within  each  State, 
according  to  its  laws,  on  all  subjects  not  intrusted  to  the  federal 
government,  appear  to  me  to  be  the  peculiar  and  exclusive  prov- 
ince and  duty  of  the  state  legislatures.  All  the  powers  delegated 
by  the  people  of  the  United  States  to  the  federal  government  are 
defined,  and  no  constructive  powers  can  be  exercised  by  it,  and  all 
the  powers  that  remain  in  the  state  governments  are  indefinite, 
except  only  in  the  constitution  of  Massachusetts. 

The  effect  of  the  resolution  or  law  of  Connecticut  above  stated, 
is  to  revise  a  decision  of  one  of  its  inferior  courts,  called  the  court 
of  probate  for  Hartford,  and  to  direct  a  new  hearing  of  the  case 
by  the  same  court  of  probate  that  passed  the  decree  against  the 
will  of  Normand  Morrison.  By  the  existing  law  of  Connecticut, 
a  right  to  recover  certain  property  had  vested  in  Calder  and  wife 
(the  appellants)  in  consequence  of  a  decision  of  a  court  of  jus- 
tice, but,  in  virtue  of  a  subsequent  resolution  or  law,  and  the 
new  hearing  thereof,  and  the  decision  in  consequence,  this  right 
to  recover  certain  property  was  divested,  and  the  right  to  the 
property  declared  to  be  in  Bull  and  wife,  the  appellees.  The 
sole  inquiry  is,  whether  this  resolution  or  law  of  Connecticut,  hav- 
ing such  operation,  is  an  ex  post  facto  law  within  the  prohibition 
of  the  federal  constitution? 

Whether  the  legislature  of  any  of  the  States  can  revise  and  cor- 
rect, by  law,  a  decision  of  any  of  its  courts  of  justice,  although 
not  prohibited  by  the  constitution  of  the  State,  is  a  question  of 
very  great  importance,  and  not  necessary  now  to  be  determined, 
because  the  resolution  or  law  in  question  does  not  go  so  far.  I 
cannot  subscribe  to  the  omnipotence  of  a  state  legislature,  or  that 
it  is  absolute  and  without  control,  although  its  authority  should 
not  be  expressly  restrained  by  the  constitution,  or  fundamental 
law  of  the  State.  The  people  of  the  United  States  erected  their 
constitutions,  or  forms  of  government,  to  establish  justice,  to  pro- 


374  CASES  ON  CONSTITUTIONAL  LAW. 

mote  the  general  welfare,  to  secure  the  blessings  of  liberty;  and 
to  protect  their  persons  and  property  from  violence.  The  pur- 
poses for  which  men  enter  into  society  will  determine  the  nature 
and  terms  of  the  social  compact;  and  as  they  are  the  foundation 
of  the  legislative  power,  they  will  decide  what  are  the  proper 
objects  of  it.  The  nature  and  ends  of  legislative  power  will  limit 
the  exercise  of  it.  This  fundamental  principle  flows  from  the 
very  nature  of  our  free  republican  governments,  that  no  man 
should  be  compelled  to  do  what  the  laws  do  not  require,  nor 
to  refrain  from  acts  which  the  laws  permit.  There  are  acts  which 
the  federal  or  state  legislature  cannot  do,  without  exceeding  their 
authority.  There  are  certain  vital  principles  in  our  free  repub- 
lican governments  which  Avill  determine  and  overrule  an  apparent 
and  flagrant  abuse  of  legislative  power;  as  to  authorize  manifest 
injustice  by  positive  law;  or  to  take  away  that  security  for  per- 
sonal liberty,  or  private  property,  for  the  protection  whereof  the 
government  was  established.  An  act  of  the  legislature  (for  I  can- 
not call  it  a  law),  contrary  to  the  great  first  principles  of  the 
social  compact,  cannot  be  considered  a  rightful  exercise  of  legis- 
lative authority.  The  obligation  of  a  law  in  governments  estab- 
lished on  express  compact,  and  on  republican  principles,  must  be 
determined  by  the  nature  of  the  power  on  which  it  is  founded.  A 
few  instances  will  suffice  to  explain  what  I  mean.  A  law  that 
punished  a  citizen  for  an  innocent  action,  or,  in  other  words,  for 
an  act  which,  when  done,  was  in  violation  of  no  existing  law;  a  law 
that  destroys,  or  impairs,  -the  lawful  private  contracts  of  citizens;  a 
law  that  makes  a  man  a  judge  in  his  own  cause;  or  a  law  that 
takes  property  from  A,  and  gives  it  to  B.  It  is  against  all  reason 
and  justice  for  a  people  to  intrust  a  legislature  with  such  powers; 
and,  therefore,  it  cannot  be  presumed  that  they  have  done  it.  The 
genius,  the  nature,  and  the  spirit  of  our  state  governments  amount 
to  a  prohibition  of  such  acts  of  legislation;  and  the  general  prin- 
ciples of  law  and  reason  forbid  them.  The  legislature  may  enjoin, 
permit,  forbid  and  punish;  they  may  declare  new  crimes,  and 
establish  rules  of  conduct  for  all  its  citizens  in  future  cases;  they 
may  command  what  is  right,  and  prohibit  what  is  wrong;  but  they 
cannot  change  innocence  into  guilt,  or  punish  innocence  as  a 
crime;  or  violate  the  right  of  an  antecedent  lawful  private  con- 
tract; or  the  right  of  private  property.  To  maintain  that  our 
federal  or  state  legislature  possesses  such  powers,  if  they  had 
not  been  expressly  restrained,  would,  in  my  opinion,  be  a  political 
heresy  altogether  inadmissible  in  our  free  republican  governments. 
All  the  restrictions  contained  in  the  constitution  of  the  United 


CALDER  V.  BULL.  375 

States,  on  the  power  of  the  state  legislatures,  were  provided  in 
favor  of  the  authority  of  the  federal  government.  The  prohibi- 
tion against  their  making  any  ex  post  facto  laws  was  introduced 
for  greater  caution,  and  very  probably  arose  from  the  knowledge 
that  the  parliament  of  Great  Britain  claimed  and  exercised  a  power 
to  pass  such  laws,  under  the  denomination  of  bills  of  attainder, 
or  bills  of  pains  and  penalties;  the  first  inflicting  capital,  and  the 
other  less  punishment.  These  acts  were  legislative  judgments; 
and  an  exercise  of  judicial  power.  Sometimes  they  respected  the 
crime,  by  declaring  acts  to  be  treason  which  were  not  treason  when 
committed;^  at  other  times  they  violated  the  rules  of  evidence,  to 
supply  a  deficiency  of  legal  proof,  by  admitting  one  witness,  when 
the  existing  law  required  two;  by  receiving  evidence  without 
oath;  or  the  oath  of  the  wife  against  the  husband;  or  other  tes- 
timony which  the  courts  of  justice  would  not  admit  ;^  at  other 
times  they  inflicted  punishments  where  the  party  was  not  by  law 
liable  to  any  punishment;^  and  in  other  cases  they  inflicted 
greater  punishment  than  the  law  annexed  to  the  offense.*  The 
ground  for  the  exercise  of  such  legislative  power  was  this,  that 
the  safety  of  the  kingdom  depended  on  the  death,  or  other  punish- 
ment, of  the  offender;  as  if  traitors,  when  discovered,  could  be 
so  formidable,  or  the  government  so  insecure.  With  very  few 
exceptions,  the  advocates  of  such  laws  were  stimulated  by  ambi- 
tion, or  personal  resentment  and  vindictive  malice.  To  prevent 
such,  and  similar  acts  of  violence  and  injustice,  I  believe  the 
federal  and  state  legislatures  were  prohibited  from  passing  any 
bill  of  attainder,  or  any  ex  post  facto  law. 

The  constitution  of  the  United  States,  art.  1,  s.  9,  prohibits  the 
legislature  of  the  United  States  from  passing  any  ex  post  facto 
law;  and  in  sec.  10  lays  several  restrictions  on  the  authority  of 
the  legislatures  of  the  several  States;  and  among  them,  "that  no 
State  shall  pass  any  ex  post  facto  law." 

It  may  be  remembered  that  the  legislatures  of  several  of  the 
States,  to  wit,  Massachusetts,  Pennsylvania,  Delaware,  Maryland, 
and  North  and  South  Carolina,  are  expressly  prohibited,  by  their 
state  constitutions,  from  passing  any  ex  post  facto  law. 

I  shall  endeavor  to  show  what  law  is  to  be  considered  an  ex 
post  facto  law,  within  the  words  and  meaning  of  the  prohibition 

1  The  case  of  the  Earl  of  Straf-  endon,  1667,  19  Car.,  2,  c.  10;  and 
ford,  in  1640.  of   Bishop    Atterbury,    in    1723,    9 

2  The  case  of  Sir  John  Fenwick,     Geo.  I.,  c.  17. 

in  1696.  4  The  Coventry  Act,  in  1670,  22 

8  The  banishment  of  Lord  Clar-     &  23  Car.,  2,  c.  1, 


376  .  CASES  ON  CONSTITUTIONAL  LAW. 

in  the  federal  constitution.  The  prohibition,  "that  no  State  shall 
pass  any  ex  post  facto  law,"  necessarily  requires  some  explana- 
tion; for  naked  and  witliout  explanation  it  is  unintelligible,  and 
means  nothing.  Literally  it  is  only  that  a  law  shall  not  be  passed 
concerning,  and  after  the  fact,  or  thing  done,  or  action  commit- 
ted. I  would  ask,  what  fact;  of  what  nature  or  kind;  and  by 
whom  done?  That  Charles  I,  king  of  England,  was  beheaded; 
that  Oliver  Cromwell  Avas  protector  of  England;  that  Louis  XVI, 
late  king  of  France,  was  guillotined, — are  all  facts  that  have  hap- 
pened, but  it  would  be  nonsense  to  suppose  that  the  States  were 
prohibited  from  making  any  law  after  either  of  these  events,  and 
with  reference  thereto.  The  prohibition  in  the  letter  is  not  to 
pass  any  law  concerning  and  after  the  fact,  but  the  plain  and 
obvious  meaning  and  intention  of  the  prohibition  is  this,  that  the 
legislatures  of  the  several  States  shall  not  pass  laws  after  a  fact 
done  by  a  subject,  or  citizen,  which  shall  have  relation  to  such 
fact,  and  shall  punish  him  for  having  done  it.  The  prohibition, 
considered  in  this  light,  is  an  additional  bulwark  in  favor  of  the 
personal  security  of  the  subject,  to  protect  his  person  from  punish- 
ment by  legislative  acts,  having  a  retrospective  operation.  I  do 
not  think  it  was  inserted  to  secure  the  citizen  in  his  private  rights, 
of  either  property  or  contracts.  The  prohibitions  not  to  make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts, 
and  not  to  pass  any  law  impairing  the  obligation  of  contracts, 
were  inserted  to  secure  private  rights;  but  the  restriction  not  to 
pass  any  ex  post  facto  law,  was  to  secure  the  person  of  the  subject 
from  injury  or  punishment,  in  consequence  of  such  law.  If  the 
prohibition  against  making  ex  post  facto  laws  was  intended  to 
secure  personal  rights  from  being  affected  or  injured  by  such  laws, 
and  the  prohibition  is  sufficiently  extensive  for  that  object,  the 
other  restraints  I  Have  enumerated  were  unnecessary,  and  there- 
fore improper,  for  both  of  them  are  retrospective. 

I  will  state  what  laws  I  consider  ex  post  facto  laws,  within  the 
words  and  the  intent  of  the  prohibition.  1st.  Every  law  that 
maies  an  action  done  before  the  passing  of  the  law,  and  which 
was  innocent  when  done,  criminal;  and  punishes  such  action. 
2d.  Every  law  that  aggravates  a  crime,  or  makes  it  greater  than 
it  was,  when  committed.  3d.  Every  law  that  changes  the  punish- 
ment, and  inflicts  a  greater  punishment  than  the  law  annexed  to 
the  crime,  when  committed.  4th.  Every  law  that  alters  the  legal 
rules  of  evidence,  and  receives  less  or  different  testimony  than 
the  law  required  at  the  time  of  the  commission  of  the  offense, 
in  order  to  convict  the  offender.     All  these  and  similar  laws  are 


CALDER  V.  BULL.  377 

manifestly  unjust  and  oppressive.  In  my  opinion,  the  true  dis- 
tinction is  between  ex  post  facto  laws  and  retrospective  laws. 
Every  ex  post  facto  law  must  necessarily  be  retrospective,  but  every 
retrospective  law  is  not  an  ex  post  facto  law;  the  former  only 
are  prohibited.  Everj'^  law  that  takes  away  or  impairs  rights  vest- 
ed, agreeably  to  existing  laws,  is  retrospective,  and  is  generally 
unjust,  and  may  be  oppressive;  and  it  is  a  good  general  rule  that 
a  law  should  have  no  retrospect;  but  there  are  cases  in  which 
laws  may  justly,  and  for  the  benefit  of  the  community,  and  also 
of  individuals,  relate  to  a  time  antecedent  to  their  commence- 
ment; as  statutes  of  oblivion,  or  of  pardon.  They  are  certainly 
retrospective,  and  literally  both  concerning,  and  after,  the  facts 
committed.  But  I  do  not  consider  any  law  ex  post  facto,  within 
the  prohibition,  that  mollifies  the  rigor  of  the  criminal  law;  but 
only  those  that  create,  or  aggravate,  the  crime;  or  increase  the 
punishment,  or  change  the  rules  of  evidence,  for  the  purpose  of 
conviction.  Every  law  that  is  to  have  an  operation  before  the 
making  thereof,  as  to  commence  at  an  antecedent  time,  or  to  save 
time  from  the  statute  of  limitations,  or  to  excuse  acts  which  were 
unlawful,  and  before  committed,  and  the  like,  is  retrospective. 
But  such  laws  may  be  proper  or  necessary,  as  the  case  may  be. 
There  is  a  great  and  apparent  difference  between  making  an  un- 
lawful act  lawful,  and  the  making  an  innocent  action  criminal, 
and  punishing  it  as  a  crime.  The  expressions  "ex  post  facto  laws" 
are  technical;  they  had  been  in  use  long  before  the  Revolution, 
and  had  acquired  an  appropriate  meaning  by  legislators,  lawyers, 
and  authors.  The  celebrated  and  judicious  Sir  William  Black- 
stone,  in  his  Commentaries,  considers  an  ex  post  facto  law  pre- 
cisely in  the  same  light  I  have  done.  His  opinion  is  confirmed  by 
his  successor,  Mr.  Wooddeson,  and  by  the  author  of  the  Federalist, 
whom  I  esteem  superior  to  both,  for  his  extensive  and  accurate 
knowledge  of  the  true  principles  of  government. 

I  also  rely  greatly  on  the  definition,  or  explanation  of  ex  post 
facto  laws,  as  given  by  the  eonventions  of  Massachusetts,  Mary- 
land, and  North  Carolina,  in  their  several  constitutions,  or  forms 
of  government. 

In  the  declaration  of  rights,  by  the  convention  of  Massachusetts, 
part  first,  section  24th,  "Laws  made  to  punish  actions  done  be- 
fore the  existence  of  such  laws,  and  which  have  not  been  declared 
crimes  by  preceding  laws,  are  unjust,  &c." 

In  the  declaration  of  rights,  by  the  convention  of  Maryland, 
article  15th,  "Eetrospective  laws  punishing  facts  committed  before 


378  CASES  ON  CONSTITUTIONAL  LAW. 

the  existence  of  such  laws,  and  by  them  only  declared  criminal, 
are  oppressive,  &c." 

In  the  declaration  of  rights  by  the  convention  of  North  Caro- 
lina, article  24:th,  I  find  the  same  definition,  precisely  in  the  same 
words  as  in  the  Maryland  constitution. 

In  the  declaration  of  rights  by  the  convention  of  Delaware,  ar- 
ticle 11th,  the  same  definition  was  clearly  intended,  but  inaccu- 
rately expressed;  by  saying,  "laws  punishing  offenses  (instead  of 
actions,  or  facts)  committed  before  the  existence  of  such  laws,  are 
oppressive,  &c." 

I  am  of  opinion,  that  the  fact,  contemplated  by  the  prohibi- 
tion, and  not  to  be  affected  by  a  subsequent  law,  was  some  fact 
to  be  done  by  a  citizen  or  subject. 

In  3  Lord  Eaymond,  1352,  Eaymond,  J,,  called  the  stat.  7 
Geo.  1,  stat.  2,  pt.  8,  about  registering  contracts  for  South  Sea 
stock,  an  ex  post  facto  law;  because  it  affected  contracts  made  be- 
fore the  statute. 

In  the  present  case,  there  is  no  fact  done  by  Bull  and  wife, 
plaintiffs  in  error,  that  is  in  any  manner  affected  by  the  law  or 
resolution  of  Connecticut;  it  does  not  concern,  or  relate  to,  any 
act  done  by  them.  The  decree  of  the  court  of  probate  of  Hartford, 
on  the  21st  March,  in  consequence  of  which  Calder  and  wife 
claim  a  right  to  the  property  in  question,  was  given  before  the 
said  law  or  resolution,  and  in  that  sense  was  affected  and  set  aside 
by  it;  and  in  consequence  of  the  law  allowing  a  hearing  and  a 
decision  in  favor  of  the  will,  they  have  lost  what  they  would  have 
been  entitled  to,  if  the  law  or  resolution,  and  the  decision  in  con- 
sequence thereof,  had  not  been  made.  The  decree  of  the  court 
of  probate  is  the  only  fact  on  which  the  law  or  resolution  operates. 
In  my  judgment  the  case  of  the  plaintiffs  in  error  is  not  within 
the  letter  of  the  prohibition;  and,  for  the  reasons  assigned,  I  am 
clearly  of  opinion,  that  it  is  not  within  the  intention  of  the  pro- 
hibition; and  if  within  the  intention,  but  out  of  the  letter,  I 
should  not,  therefore  consider  myself  justified  to  continue  it  within 
the  prohibition,  and  therefore  that  the  whole  was  void. 

It  was  argued  by  the  counsel  for  the  plaintiffs  in  error,  that 
the  legislature  of  Connecticut  had  no  constitutional  power  to 
make  the  resolution,  or  law,  in  question,  granting  a  new  hear- 
ing, &c. 

Without  giving  an  opinion,  at  this  time,  whether  this  court 
has  jurisdiction  to  decide  that  any  law  made  by  congress,  con- 
trary to  the  constitution  of  the  United  States,  is  void,  I  am  fully 
satisfied  that  this  court  has  no  jurisdiction  to  determine  that  any 


C ALDER  V.  BULL.  379 

law  of  any  state  legislature,  contrary  to  the  constitution  of  such 
State,  is  void.  Further,  if  this  court  had  such  Jurisdictior.,  yet  it 
does  not  appear  to  me,  that  the  resolution,  or  law,  in  question,  is 
contrary  to  the  charter  of  Connecticut,  or  its  constitution,  which 
is  said  by  counsel  to  be  composed  of  its  charter,  acts  of  assembly, 
and  usages  and  customs.  I  should  think  that  the  courts  of  Con- 
necticut are  the  proper  tribunals  to  decide  whether  laws  contrary 
to  the  constitution  thereof  are  void.  In  the  present  case  they  have, 
both  in  the  inferior  and  superior  courts,  determined  that  the  reso- 
lution, or  law,  in  question,  was  not  contrary  to  either  their  State 
or  the  federal  constitution. 

To  show  that  the  resolution  was  contrary  to  the  constitution  of 
the  United  States,  it  was  contended  that  the  words,  ex  post  facto 
law,  have  a  precise  and  accurate  meaning,  and  convey  but  one  idea 
to  professional  men,  which  is,  "by  matter  of  after  fact;  by  some- 
thing after  the  fact."  And  Co.  Litt.,  241;  Feame's  Cont.  Eem. 
(old  ed.),  175  and  203;  Powell  on  Devises,  113,  133,  134,  were 
cited;  and  the  table  to  Coke's  Reports  (by  "Wilson),  title  ex  post 
facto,  was  referred  to.  There  is  no  doubt  that  a  man  may  be  a 
trespasser  from  the  beginning,  by  matter  of*  after  fact;  as  where 
an  entry  is  given  by  law,  and  the  party  abuses  it;  or  where  the 
law  gives  a  distress,  and  the  party  kills,  or.  works  the  distress. 

I  admit,  an  act  unlawful  in  the  beginning  may,  in  some  cases, 
become  lawful  by  matter  of  after  fact. 

I  also  agree  that  the  words  "ex  post  facto"  have  the  meaning 
contended  for,  and  no  other,  in  the  cases  cited,  and  in  all  similar 
cases  where  they  are  used  unconnected  with,  and  without  relation 
to,  legislative  acts,  or  laws. 

There  appears  to  me  a  manifest  distinction  between  the  case 
where  one  fact  relates  to,  and  affects  another  fact,  as  where  an 
after  fact,  by  operation  of  law,  makes  a  former  fact  either  lawful 
or  unlawful;  and  the  case  where  a  law  made  after  a  fact  done,  is 
to  operate  on,  and  to  affect  such  fact.  In  the  first  case  both  the 
acts  are  done  by  private  persons.  In  the  second  case  the  first 
act  is  done  by  a  private  person,  and  the  second  act  is  done  by 
the  legislature  to  affect  the  first  act. 

I  believe  that  but  one  instance  can  be  found  in  which  a  British 
judge  called  a  statute  that  affected  contracts  made  before  the 
statute,  an  ex  post  facto  law;  but  the  judges  of  Great  Britain 
always  considered  penal  statutes,  that  created  crimes,  or  increased 
the  punishment  of  then^,  as  ex  post  facto  laws. 

If  the  term  ex  post  facto  law  is  to  be  construed  to  include  and 
to  prohibit  the  enacting  any  law  after  a  fact,  it  will  greatly  re- 


380  CASES  ON  CONSTITUTIONAL  LAW. 

strict  the  power  of  the  federal  and  state  legislatures;  and  the 
consequences  of  such  a  construction  may  not  be  foreseen. 

If  the  prohibition  to  make  no  ex  post  facto  law  extends  to  all 
laws  made  after  the  fact,  the  two  prohibitions,  not  to  make  any- 
thing but  gold  and  silver  coin  a  tender  in-  payment  of  debts, 
and  not  to  pass  any  law  impairing  the  obligation  of  contracts,  were 
improper  and  unnecessary. 

It  was  further  urged,  that  if  the  provision  does  not  extend  to 
prohibit  the  making  any  law  after  a  fact,  then  all  choses  in  action, 
all  lands  by  devise,  all  personal  property  by  bequest  or  distribu- 
tion, by  elegit,  by  execution,  by  judgments,  particularly  on  torts, 
will  be  unprotected  from  the  legislative  power  of  the  States; 
rights  vested  may  be  divested  at  the  will  and  pleasure  of  the  state 
legislatures;  and,  therefore,  that  the  true  construction  and  mean- 
ing of  the  prohibition  is,  that  the  States  pass  no  law  io  deprive 
a  citizen  of  any  right  vested  in  him  by  existing  laws. 

It  is  not  to  be  presumed  that  the  federal  or  state  legislatures 
will  pass  laws  to  deprive  citizens  of  rights  vested  in  them  by  exist- 
ing laws;  unless  for  the  benefit  of  the  whole  community;  and 
on  making  full  satisfaction.  The  restraint  against  making  any 
ex  post  facto  laws  was  not  considered,  by  the  framers  of  the  con- 
stitution, as  extending  to  prohibit  the  depriving  a  citizen  even 
of  a  vested  right  to  property;  or  the  provision,  "that  private  prop- 
erty should  not  be  taken  for  public  use,  without  just  compensa- 
tion," was  unnecessary. 

It  seems  to  me  that  the  right  of  property,  in  its  origin,  could 
only  arise  from  compact  express,  or  implied,  and  I  think  it  the 
better  opinion,  that  the  right,  as  well  as  the  mode  or  manner 
of  acquiring  property,  and  of  alienating  or  transferring,  inheriting 
or  transmitting  it,  is  conferred  by  society,  is  regulated  by  civil  in- 
stitution, and  is  always  subject  to  the  rules  prescribed  by  posi- 
tive law.  When  I  say  that  a  right  is  vested  in  a  citizen,  I  mean, 
that  he  has  the  power  to  do  certain  actions,  or  to  possess  certain 
things,  according  to  the  law  of  the  land. 

If  any  one  has  a  right  to  property,  such  right  is  a  perfect  and 
exclusive  right;  but  no  one  can  have  such  right  before  he  has 
acquired  a  better  right  to  the  property  than  any  other  person  in 
the  world;  a  right,  therefore,  only  to  recover  property  cannot  be 
called  a  perfect  and  exclusive  right.  I  cannot  agree,  that  a  right 
to  property  vested  in  Calder  and  wife,  in  consequence  of  the  decree 
of  the  21st  of  March,  1783,  disapproving  of  the  will  of  Morrison, 
the  grandson.     If  the  will  was  valid,  Mrs.  Calder  could  have  no 


CUMMINGS   V.    STATE    OF   MISSOURI.  381 

right,  as  heiress  of  Morrison,  the  physician;  but  if  the  will  was 
set  aside,  she  had  an  undoubted  title. 

The  resolution,  or  law,  alone  had  no  manner  of  effect  on  any 
right  whatever  vested  in  Calder  and  wife.  The  resolution,  or 
law,  combined  with  the  new  hearing,  and  the  decision  in  virtue  of 
it,  took  away  their  right  to  recover  the  property  in  question.  3ut 
when  combined  they  took  away  no  right  of  property  vested  in 
Calder  and  wife;  because  the  decree  against  the  will,  21st  March, 
1783,  did  not  vest  in  or  transfer  any  property  to  them. 

I  am  under  a  necessity  to  give  a  construction,  or  explanation 
of  the  words,  "ex  post  facto,"  because  they  have  not  any  certain 
meaning  attached  to  them.  But  I  will  not  go  further  than  I  feel 
myself  bound  to  do;  and  if  I  ever  exercise  the  jurisdiction,  I  will 
not  decide  any  law  to  be  void,  but  in  a  very  clear  case. 

I  am  of  the  opinion  that  the  decree  of  the  supreme  court  of 
errors  of  Connecticut  be  affirmed,  with  costs. 

[Justices  Paterson,  Iredell,  and  Cushing  delivered  con- 
curring opinions.] 


CUMMINGS   V.    THE   STATE    OF   MISSOUKI. 

4  Wallace,  277.    Decided  1866. 
[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  a  writ  of  error  to  the  Supreme 
Court  of  Missouri,  and  involves  a  consideration  of  the  test  oath 
imposed  by  the  constitution  of  that  State.  The  plaintiff  in  error 
is  a  priest  of  the  Roman  Catholic  Church,  and  was  indicted  and 
convicted  in  one  of  the  circuit  courts  of  the  State  of  the  crime 
of  teaching  and  preaching  as  a  priest  and  minister  of  that  relig- 
ious denomination  without  having  first  taken  the  oath,  and  was 
sentenced  to  pay  a  fine  of  five  hundred  dollars,  and  to  be  com- 
mitted to  jail  until  the  same  was  paid.  On  appeal  to  the  Supreme 
Court  of  the  State,  the  judgment  was  affirmed. 

The  oath  prescribed  by  the  constitution,  divided  into  its  sep- 
arable parts,  embraces  more  than  thirty  distinct  affirmations  or 
tests.  Some  of  the  acts  against  which  it  is  directed,  constitute 
offenses  of  the  highest  grade,  to  which,  upon  conviction,  heavy 
penalties  are  attached.  Some  of  the  acts  have  never  been  classed 
as  offenses  in  the  laws  of  any  State,  and  some  of  the  acts,  under 


382  CASES  ON  CONSTITUTIONAL  LAW. 

many  circumstances,  would  not  even  be  blameworthy.  It  requires 
the  affiant  to  deny  not  only  that  he  has  ever  "been  in  armed  hos- 
tility to  the  United  States,  or  to  the  lawful  authorities  thereof," 
but,  among  other  things,  that  he  has  ever,  "by  act  or  word,"  man- 
ifested his  adherence  to  the  cause  of  the  enemies  of  the  United 
States,  foreign  or  domestic,  or  his  desire  for  their  triumph  over 
the  arms  of  the  United  States,  or  his  sympathy  with  those  en- 
gaged in  rebellion,  or  has  ever  harbored  or  aided  any  person  en- 
gaged in  guerilla  warfare  against  the  loyal  inhabitants  of  the 
United  States,  or  has  ever  entered  or  left  the  State  for  the  pur- 
pose of  avoiding  enrolment  or  draft  in  the  military  service  of  the 
United  States;  or,  to  escape  the  performance  of  duty  in  the  militia 
of  the  United  States,  has  ever  indicated,  in  any  terms,  his  disaffec- 
tion to  the  government  of  the  United  States  in  its  contest  with 
the  Eebellion. 

Every  person  who  is  unable  to  take  this  oath  is  declared  incapa- 
ble of  holding,  in  the  State,  "any  office  of  honor,  trust,  or  profit 
under  its  authority,  or  of  being  an  officer,  councilman,  director, 
or  trustee,  or  other  manager  of  any  corporation,  public  or  private, 
now  existing  or  hereafter  established  by  its  authority,  or  of  act- 
ing as  a  professor  or  teacher  in  any  educational  institution,  or 
in  any  common  or  other  school,  or  of  holding  any  real  estate  or 
other  property  in  trust  for  the  use  of  any  church,  religious  so- 
ciety, or  congregation." 

And  every  person  holding,  at  the  time  the  constitution  takes 
effect,  any  of  the  offices,  trusts,  or  positions  mentioned,  is  re- 
quired, within  sixty  days  thereafter,  to  take  the  oath;  and,  if  he 
fail  to  comply  with  this  requirement,  it  is  declared  that  his  office, 
trust,  or  position  shall  ipso  facto  become  vacant. 

No  person,  after  the  expiration  of  the  sixty  days,  is  permitted, 
without  taking  the  oath,  "to  practice  as  an  attorney  or  counsel- 
lor-at-law,  nor  after  that  period  can  any  person  be  competent, 
as  a  bishop,  priest,  deacon,  minister,  elder,  or  other  clergj-man, 
of  any  religious  persuasion,  sect,  or  denomination,  to  teach,  preach, 
or  solemnize  marriages." 

Fine  and  imprisonment  are  prescribed  as  a  punishment  for 
holding  or  exercising  any  of  "the  offices,  positions,  trusts,  profes- 
sions, or  functions"  specified,  without  having  taken  the  oath;  and 
false  swearing  or  affirmation  in  taking  it  is  declared  to  be  perjury, 
punishable  by  imprisonment  in  the  penitentiary. 

The  oath  thus  required  is,  for  its  severity,  without  any  prece- 
dent that  we  can  discover.  In  the  first  place,  it  is  retrospective; 
it  embraces  all  the  past  from  this  day;   and,  if  taken  years  hence. 


CUMMINGS    V.    STATE    OF    MISSOURI.  383 

it  will  also  cover  all  the  intervening  period.  In  its  retrospective 
feature  we  believe  it  is  peculiar  to  this  country.  In  England  and 
Trance  there  have  been  test  oaths,  but  they  were  always  limited 
to  an  affirmation  of  present  belief,  or  present  disposition  towards 
the  government,  and  were  never  exacted  with  reference  to  particu- 
lar instances  of  past  misconduct.  In  the  second  place,  the  oath 
is  directed  not  merely  against  overt  and  visible  acts  of  hostility 
to  the  government,  but  is  intended  to  reach  words,  desires,  and 
sympathies,  also.  And,  in  the  third  place,  it  allows  no  distinction 
between  acts  springing  from  malignant  enmity  and  acts  which  may 
have  been  prompted  by  charity,  or  affection,  or  relationship.  If 
one  has  ever  expressed  sympathy  with  any  who  were  drawn  into 
the  Eebellion,  even  if  the  recipients  of  that  sympathy  were  con- 
nected by  the  closest  ties  of  blood,  he  is  as  unable  to  subscribe  to 
the  oath  as  the  most  active  and  the  most  cruel  of  the  rebels,  and  is 
equally  debarred  from  the  offices  of  honor  or  trust,  and  the  posi- 
tions and  employments  specified. 

But,  as  it  was  observed  by  the  learned  counsel  who  appeared  on 
behalf  of  the  State  of  Missouri,  this  court  cannot  decide  the  case 
upon  the  justice  or  hardship  of  these  provisions.  Its  duty  is  to 
determine  whether  they  are  in  conflict  with  the  Constitution  of 
the  United  States.  On  behalf  of  Missouri,  it  is  urged  that  they 
only  prescribe  a  qualification  for  holding  certain  offices,  and  prac- 
ticing certain  callings,  and  that  it  is  therefore  within  the  power 
of  the  State  to  adopt  them.  On  the  other  hand,  it  is  contended 
that  they  are  in  conflict  with  that  clause  of  the  Constitution  which 
■forbids  any  State  to  pass  a  bill  of  attainder  or  an  ex  post  facto 
law. 

We  admit  the  propositions  of  the  counsel  of  Missouri,  that  the 
States  which  existed  previous  to  the  adoption  of  the  Federal  Con- 
stitution possessed  originally  all  the  attributes  of  sovereignty;  that 
they  still  retain  those  attributes,  except  as  they  have  been  sur- 
rendered by  the  formation  of  the  Constitution,  and  the  amend- 
ments thereto;  that  the  new  States,  upon  their  admission  into  the 
Union,  became  invested  with  equal  rights,  and  were  thereafter  sub- 
ject only  to  similar  restrictions,  and  that  among  the  rights  re- 
served to  the  States  is  the  right  of  each  State  to  determine  the 
qualifications  for  office,  and  the  conditions  upon  which  its  citizens 
may  exercise  their  various  callings  and  pursuits  within  its  juris- 
diction. 

These  are  general  propositions,  and  involve  principles  of  the 
highest  moment.  But  it  by  no  means  follows  that,  under  the 
form  of  creating  a  qualification  or  attaching  a  condition,  the  States 


384  CASES  ON  CONSTITUTIONAL  LAW. 

can  in  effect  inflict  a  punishment  for  a  past  act  which  was  not 
punishable  at  the  time  it  was  committed.  The  question  is  not  as 
to  the  existence  of  the  power  of  the  State  over  matters  of  internal 
police,  but  whether  that  power  has  been  made  in  the  present  case 
an  instrument  for  the  infliction  of  punishment  against  the  inhibi- 
tion of  the  Constitution. 

Qualifications  relate  to  the  fitness  or  capacity  of  the  party  for 
a  particular  pursuit  or  profession.  Webster  defines  the  term  to 
mean  "any  natural  endowment  or  any  acquirement  which  fits  a 
person  for  a  place,  office,  or  employment,  or  enables  him  to  sus- 
tain any  character,  with  success.  It  is  evident  from  the  nature 
of  the  pursuits  and  professions  of  the  parties,  placed  under  dis- 
abilities by  the  constitution  of  Missouri,  that  many  of  the  aots, 
from  the  taint  of  which  they  must  purge  themselves,  have  no 
possible  relation  to  their  fitness  for  those  pursuits  and  professions. 
There  can  be  no  connection  between  the  fact  that  Mr.  Cummings 
entered  or  left  the  State  of  Missouri  to  avoid  enrolment  or  draft 
in  the  military  service  of  the  United  States  and  his  fitness  to 
teach  the  doctrines  or  administer  the  sacraments  of  his  church;  nor 
can  a  fact  of  this  kind  or  the  expression  of  words  of  sympathy 
with  some  of  the  persons  drawn  into  the  Eebellion  constitute 
any  evidence  of  the  unfitness  of  the  attorney  or  counsellor  to  prac- 
tice his  profession,  or  of  the  professor  to  teach  the  ordinary 
branches  of  education,  or  of  the  want  of  business  knowledge  or 
business  capacity  in  the  manager  of  a  corporation,  or  in  any  di- 
rector or  trustee.  It  is  manifest  upon  the  simple  staitement  of 
many  of  the  acts  and  of  the  professions  and  pursuits,  that  there 
is  no  such  relation  between  them  as  to  render  a  denial  of  the 
commission  of  the  acts  at  all  appropriate  as  a  condition  of  allow- 
ing the  exercise  of  the  professions  and  pursuits.  The  oath  could 
not,  therefore,  have  been  required  as  a  means  of  ascertaining 
whether  parties  were  qualified  or  not  for  their  respective  callings 
or  the  trusts  with  which  they  were  charged.  It  was  required  in 
order  to  reach  the  person,  not  the  calling.  It  was  exacted,  not 
from  any  notion  that  the  several  acts  designated  indicated  unfit- 
ness for  the  callings,  but  because  it  was  thought  that  the  several 
acts  deserved  punishment,  and  that  for  many  of  them  there  was 
no  way  to  inflict  punishment  except  by  depriving  the  parties,  who 
had  committed  them,  of  some  of  the  rights  and  privileges  of  the 
citizen. 

The  disabilities  created  by  the  constitution  of  Missouri  must  be 
regarded  as  penalties — ^they  constitute  punishment.  "We  do  not 
agree  with  the  counsel  of  Missouri  that  "to  punish  one  is  to  de- 


CUMMINGS    V.    STATE    OF    MISSOURI.  385 

prive  him  of  life,  liberty,  or  property,  and  that  to  take  from  him 
anything  less  than  these  is  no  punishment  at  all."  The  learned 
counsel  does  not  use  these  tenns — life,  liberty,  and  property — as 
comprehending  every  right  known  to  the  law.  He  does  not  in- 
clude under  liberty  freedom  from  outrage  on  the  feelings  as  well 
as  restraints  on  the  person.  He  does  not  include  under  property 
those  estates  which  one  may  acquire  in  professions,  though  they 
are  often  the  source  of  the  highest  emoluments  and  honors.  The 
deprivation  of  any  rights,  civil  or  political,  previously  enjoyed, 
may  be  punishment,  the  circumstances  attending  and  the  causes 
of  the  deprivation  determining  this  fact.  Disqualification  from 
office  may  be  punishment,  as  in  cases  of  conviction  upon  im- 
peachment. Disqualification  from  the  pursuits  of  a  lawful 
avocation,  or  from  positions  of  trust,  or  from  the  privi- 
lege of  appearing  in  the  courts,  or  acting  as  an  execu- 
tor, administrator,  or  guardian,  may  also,  and  often  has  been, 
imposed  as  punishment.  By  statute  9  and  10,  William  III,  chap. 
32,  if  any  person  educated  in  or  having  made  a  profession 
of  the  Christian  religion,  did  "by  writing,  printing,  teaching, 
or  advised  speaking,"  deny  the  truth  of  the  religion,  or  the  divine 
authority  of  the  Scriptures,  he  was  for  the  first  offense  rendered 
incapable  to  hold  any  office  or  place  of  trust;  and  for  the  second, 
he  was  rendered  incapable  of  bringing  any  action,  being  guar- 
dian, executor,  legatee,  or  purchaser  of  lands,  besides  being  sub- 
jected to  three  years'  imprisonment  without  bail.^ 

By  statute  1  George  I,  chap.  13,  contempts  against  the  king's 
title,  arising  from  refusing  or  neglecting  to  take  certain  pre- 
scribed oaths,  and  yet  acting  in  an  office  or  place  of  trust  for 
which  they  were  required,  were  punished  by  incapacity  to  hold  any 
public  office;  to  prosecute  any  suit;  to  be  guardian  or  execu- 
tor; to  take  any  legacy  or  deed  of  gift;  and  to  vote  at  any  elec- 
tion for  members  of  Parliament;  and  the  offender  was  also  sub- 
ject to  a  forfeiture  of  five  hundred  pounds  to  any  one  who  would 
sue  for  the  same.^ 

"Some  punishments,"  says  Blackstone,  "consist  in  exile  oi*  ban- 
ishment, by  abjuration  of  the  realm  or  transportation;  others  in 
loss  of  liberty  by  perpetual  or  temporary  imprisonment.  Some 
extend  to  confiscation  by  forfeiture  of  lands  or  movables,  or  both, 
or  of  the  profits  of  lands  for  life;  others  induce  a  disability  of 
holding  offices  or  employments,  being  heirs,  executors,  and  the 
like."3 

1  4   Black,   44.  a  id.,  377. 

2  Id.,  124. 

25 


386  CASES  ON  CONSTITUTIONAL  LAW. 

In  France,  deprivation  or  suspension  of  civil  rights,  or  of  some 
of  them,  and  among  these  of  the  right  of  voting,  of  eligibility  to 
office,  of  taking  part  in  family  councils,  of  being  guardian  or 
trustee,  of  bearing  arms,  and  of  teaching  or  being  employed  in 
a  school  or  seminary  of  learning,  are  punishments  prescribed  by 
her  code. 

The  theory  upon  which  our  political  institutions  rest  is,  that  all 
men  have  certain  inalienable  rights — that  among  these  are  life, 
liberty,  and  the  pursuit  of  happiness;  and  that  in  the  pursuit  of 
happiness  all  avocations,  all  honors,  all  positions,  are  alike  open 
to  every  one,  and  that  in  the  protection  of  these  rights  all  are 
equal  before  the  law.  Any  deprivation  or  suspension  of  any  of 
these  rights  for  past  conduct  is  punishment,  and  can  be  in  no 
otherwise  defined. 

Punishment  not  being,  therefore,  restricted,  as  contended 
by  counsel,  to  the  deprivation  of  life,  liberty,  or  property,  but 
also  embracing  deprivation  or  suspension  of  political  or  civil  rights, 
and  the  disabilities  prescribed  by  the  provisions  of  the  Missouri 
constitution  being  in  effect  punishment,  we  proceed  to  consider 
whether  there  is  any  inhibition  in  the  Constitution  of  the  United 
States  against  their  enforcement. 

The  counsel  for  Missouri  closed  his  argument  in  this  case  by 
presenting  a  striking  picture  of  the  struggle  for  ascendancy  in 
that  State  during  the  recent  Rebellion  between  the  friends  and 
the  enemies  of  the  Union,  and  of  the  fierce  passions  which  that 
struggle  aroused.  It  was  in  the  midst  of  the  struggle  that  the 
present  constitution  was  framed,  although  it  was  not  adopted 
by  the  people  until  the  war  had  closed.  It  would  have  been 
strange,  therefore,  had  it  not  exhibited  in  its  provisions  some 
traces  of  the  excitement  amidst  which  the  convention  held  its 
deliberations. 

It  was  against  the  excited  action  of  the  States,  under  such  in- 
fluences as  these,  that  the  framers  of  the  Federal  Constitution 
intended  to  guard.  In  Fletcher  v.  Peck,*  Mr.  Chief  Justice  Mar- 
shall, speaking  of  such  action,  uses  this  language:  "Whatever  re- 
spect might  have  been  felt  for  the  State  sovereignties,  it  is  not  to 
be  disguised  that  the  framers  of  the  Constitution  viewed  with 
some  apprehension  the  violent  acts  which  might  grow  out  of  the 
feelings  of  the  moment j  and  that  the  people  of  the  United 
States,  in  adopting  that  instrument,  have  manifested  a  determina- 
tion to  shield  themselves  and  their  property  from  the  effects  of 
those  sudden  and  strong  passions  to  which  men  are  exposed.    The 

4  6  Cranch,  137. 


CUMMINGS    V.    STATE    OF    MISSOURI.  387 

restrictions  on  the  legislative  power  of  the  States  are  obviously 
founded  in  this  sentiment;  and  the  Constitution  of  the  United 
States  contains  what  may  be  deemed  a  bill  of  rights  for  the  peo- 
ple of  each  State." 

"No  State  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts." 

A  bill  of  attainder  is  a  legislative  act  which  inflicts  punishment 
without  a  judicial  trial. 

If  the  punishment  be  less  than  death,  the  act  is  termed  a  bill  of 
pains  and  penalties.  Within  the  meaning  of  the  Constitution,  bills 
of  attainder  include  bills  of  pains  and  penalties.  In  these  cases 
the  legislative  body,  in  addition  to  its  legitimate  functions,  exer- 
cises the  powers  and  office  of  judge;  it  assumes,  in  the  language 
of  the  text-books,  judicial  magistracy;  it  pronounces  upon  the 
guilt  of  the  party,  without  any  of  the  forms  or  safeguards  of  trial; 
it  determines  the  sufficiency  of  the  proofs  produced,  whether  con- 
formable to  the  rules  of  evidence  or  otherwise;  and  it  fixes  the 
degree  of  punishment  in  accordance  with  its  own  notions  of  the 
enormity  of  the  offense. 

"Bills  of  this  sort,"  says  Mr.  Justice  Story,  "have  been  most 
usually  passed  in  England  in  times  of  rebellion,  or  gross  subserv- 
iency to  the  crown,  or  of  violent  political  excitements;  periods, 
in  which  all  nations  are  most  liable  (as  well  the  free  as  the  en- 
slaved) to  forget  their  duties,  and  to  trample  upon  the  rights  and 
liberties  of  others."^ 

These  bills  are  generally  directed  against  individuals  by  name; 
but  they  may  be  directed  against  a  whole  class.  The  bill  against 
the  Earl  of  Kildare  and  others,  passed  in  the  reign  of  Henry 
VIII,*  enacted  that  "all  such  persons  which  be  or  heretofore  have 
been  comforters,  abettors,  partakers,  confederates,  or  adherents 
unto  the  said"  late  earl,  and  certain  other  parties,  who  were  named, 
"in  his  or  their  false  and  traitorous  acts  and  purposes,  shall  in  like- 
wise stand,  and  be  attainted,  adjudged,  and  convicted  of  high 
treason;"  and  that  "the  same  attainder,  judgment,  and  convic- 
tion against  the  said  comforters,  abettors,  partakers,  confeder- 
ates, and  adherents,  shall  be  as  strong  and  effectual  in  the  law 
against  them,  and  every  of  them,  as  though  they  and  pvery  of 
them  had  been  specially,  singularly,  and  particularly  named  by 
their  proper  names  and  surnames  in  the  said  act." 

These  bills  may  inflict  punishment  absolutely,  or  may  inflict 
it  conditionally. 

5  Commentaries,  §  1344.  « 28   Henry   VIIL,    chap.    18;    3 

Stats,  of  the  Realm,  694. 


388  CASES  ON  CONSTITUTIONAL  LAW. 

The  bill  against  the  Earl  of  Clarendon,  passed  in  the  reign  of 
Charles  the  Second,  enacted  that  the  earl  should  suffer  perpetual 
exile,  and  be  forever  banished  from  the  realm;  and  that  if  he 
returned,  or  was  found  in  England,  or  in  any  other  of  the  king's 
dominions,  after  the  first  of  February,  1667,  he  should  suffer  the 
pains  and  penalties  of  treason;  with  the  proviso,  however,  that  if 
he  surrendered  himself  before  the  said  first  day  of  February  for 
trial,  the  penalties  and  disabilities  declared  should  be  void  and 
of  no  effect.'' 

"A  British  act  of  Parliament,"  to  cite  the  language  of  the  Su- 
preme Court  of  Kentucky,  "might  declare,  that  if  certain  individ- 
uals, or  a  class  of  individuals,  failed  to  do  a  given  act  by  a  named 
day,  they  should  be  deemed  to  be,  and  treated  as  convicted  felons 
or  traitors.  Such  an  act  comes  precisely  within  the  definition  of 
a  bill  of  attainder,  and  the  English  courts  would  enforce  it  with- 
out indictment  or  trial  by  jury."* 

If  the  clauses  of  the  second  article  of  the  constitution  of  Mis- 
souri, to  which  we  have  referred,  had  in  terms  declared  that  Mr. 
Cummings  was  guilty,  or  should  be  held  guilty,  of  having  been  in 
armed  hostility  to  the  United  States,  or  of  having  entered  that 
State  to  avoid  being  enrolled  or  drafted  into  the  military  service 
of  the  United  States,  and,  therefore,  should  be  deprived  of  the 
right  to  preach  as  a  priest  of  the  Catholic  Church,  or  to  teach  in 
any  institution  of  learning,  there  could  be  no  question  that  the 
clauses  would  constitute  a  bill  of  attainder  within  the  meaning  of 
the  Federal  Constitution.  If  these  clauses,  instead  of  mentioning 
his  name,  had  declared  that  all  priests  and  clergymen  within  the 
State  of  Missouri  were  guilty  of  these  acts,  or  should  be  held 
guilty  of  them,  and  hence  be  subjected  to  the  like  deprivation, 
the  clauses  would  be  equally  open  to  objection.  And,  further,  if 
these  clauses  had  declared  that  all  such  priests  and  clergymen 
should  be  so  held  guilty,  and  be  thus  deprived,  provided  they  did 
not,  by  a  day  designated,  do  certain  specified  acts,  they  would  be 
no  less  within  the  inhibition  of  the  Federal  Constitution. 

In  all  these  cases  there  would  be  the  legislative  enactment  cre- 
ating the  deprivation  without  any  of  the  ordinary  forms  and 
guards  provided  for  the  security  of  the  citizen  in  the  administra- 
tion of  justice  by  the  established  tribunals. 

The  results  which  would  follow  from  clauses  of  the  character 
mentioned  do  follow  from  the  clauses  actually  adopted.    The  dif- 

7  Printed  in  6  Howell's  State  » Gaines  v.  Buford,  1  Dana,  510. 
Trials,  p.  391. 


CUMMINGS   V.    STATE   OF   MISSOURI.  389 

ference  between  the  last  case  supposed  and  the  case  actually  pre- 
sented is  one  of  form  only,  and  not  of  substance.  The  existing 
clauses  presume  the  guilt  of  the  priests  and  clergymen,  and  ad- 
judge the  deprivation  of  their  right  to  preach  or  teach  unless  the 
presumption  be  first  removed  by  their  expurgatory  oath — in  other 
words,  they  assume  the  guilt  and  adjudge  the  punishment  condi- 
tionally. The  clauses  supposed  differ  only  in  that  they  declare 
the  guilt  instead  of  assuming  it.  The  deprivation  is  effected 
with  equal  certainty  in  the  one  case  as  it  would  be  in  the  other, 
but  not  with  equal  directness.  The  purpose  of  the  lawmaker  in 
the  case  supposed  would  be  openly  avowed;  in  the  case  existing 
it  is  only  disguised.  The  legal  result  must  be  the  same,  for  what 
cannot  be  done  directly  cannot  be  done  indirectly.  The  Consti- 
tution deals  with  substance,  not  shadows.  Its  inhibition  was  lev- 
eled at  the  thing,  not  the  name.  It  intended  that  the  rights 
of  the  citizen  should  be  secure  against  deprivation  for  past  conduct 
by  legislative  enactment,  under  any  form,  however  disguised.  If 
the  inhibition  can  be  evaded  by  the  form  of  the  enactment,  its 
insertion  in  the  fundamental  law  was  a  vain  and  futile  proceed- 
ing. 

We  proceed  to  consider  the  second  clause  of  what  Mr.  Chief 
Justice  Marshall  terms  a  bill  of  rights  for  the  people  of  each 
State — the  clause  which  inhibits  the  passage  of  an  ex  post  facto 
law. 

By  an  ex  post  facto  law  is  meant  one  which  imposes  a  punish- 
ment for  an  act  which  was  not  punishable  at  the  time  it  was 
committed;  or  imposes  additional  punishment  to  that  then  pre- 
scribed; or  changes  the  rules  of  evidence  by  which  less  or  different 
testimony  is  sufficient  to  convict  than  was  then  required. 

In  Fletcher  v.  Peck,  Mr.  Chief  Justice  Marshall  defined  an  ex 
post  facto  law  to  be  one  'Vhich  renders  an  act  punishable  in  a 
manner  in  which  it  was  not  punishable  when  it  was  committed." 
"Such  a  law,"  said  that  eminent  judge,  "may  inflict  penalties  on 
the  person,  or  may  inflict  pecuniary  penalties  which  swell  the 
public  treasury.  The  legislature  is  then  prohibited  from  passing 
a  law  by  which  a  man's  estate,  or  any  part  of  it,  shall  be  seized 
for  a  crime,  which  was  not  declared  by  some  previous  law  to  render 
him  liable  to  that  punishment.  Why,  then,  should  violence  be 
done  to  the  natural  meaning  of  words  for  the  purpose  of  leaving 
to  the  legislature  the  power  of  seizing  for  public  use  the  estate  of 
an  individual,  in  the  form  of  a  law  annulling  the  title  by  which 
he  holds  the  estate?  The  court  can  perceive  no  sufficient  grounds 
for  making  this  distinction.     This  rescinding  act  would  have  the 


390  CASES  ON  CONSTITUTIONAL  LAW. 

effect  of  an  ex  post  facto  law.  It  forfeits  the  estate  of  Fletcher 
for  a  crime  not  committed  by  himself,  but  by  those  from  whom 
he  purchased.  This  cannot  be  effected  in  the  form  of  an  ex  post 
facto  law,  or  bill  of  attainder;  why,  then,  is  it  allowable  in  the 
form  of  a  law  annulling  the  original  grant?" 

The  act  to  which  reference  is  here  made  was  one  passed  by  the 
State  of  Georgia,  rescinding  a  previous  act,  under  which  lands 
had  been  granted.  The  rescinding  act,  annulling  the  title  of  the 
grantees,  did  not,  in  terms,  define  any  crimes,  or  inflict  any  pun- 
ishment, or  direct  any  judicial  proceedings;  yet,  inasmuch  as  the 
legislature  was  forbidden  from  passing  any  law  by  which  a  man's 
estate  could  be  seized  for  a  crime,  which  was  not  declared  such 
by  some  previous  law  rendering  him  liable  to  that  punishment,  the 
chief  justice  was  of  opinion  that  the  rescinding  act  had  the  effect 
of  an  ex  post  facto  law,  and  was  within  the  constitutional  prohi- 
bition. 

The  clauses  in  the  Missouri  constitution,  which  are  the  subject 
of  consideration,  do  not,  in  terms,  define  any  crimes,  or  declare 
that  any  punishment  shall  be  inflicted,  but  they  produce  the  same 
result  upon  the  parties,  against  whom  they  are  directed,  as  though 
the  crimes  were  defined  and  the  punishment  was  declared.  They 
assume  that  there  are  persons  in  Missouri  who  are  guilty  of  some 
of  the  acts  designated.  They  would  have  no  meaning  in  the 
constitution  were  not  such  the  fact.  They  are  aimed  at  past  acts, 
and  not  future  acts.  They  were  intended  especially  to  operate 
upon  parties  who,  in  some  form  or  manner,  by  action  or  words, 
directly  or  indirectly,  had  aided  or  countenanced  Eebellion,  or 
sympathized  with  parties  engaged  in  the  Eebellion,  or  had  en- 
deavored to  escape  the  proper  responsibilities  and  duties  of  a 
citizen  in  time  of  war;  and  they  were  intended  to  operate  by  de- 
priving such  persons  of  the  right  to  hold  certain  offices  and  trusts, 
and  to  pursue  their  ordinary  and  regular  avocations.  This  de- 
privation is  punishment;  nor  is  it  any  less  so  because  a  way  is 
opened  for  escape  from  it  by  the  expurgatory  oath.  The  framers 
of  the  constitution  of  Missouri  knew  at  the  time  that  whole 
classes  of  individuals  would  be  unable  to  take  the  oath  prescribed. 
To  them  there  is  no  escape  provided;  to  them  the  deprivation 
was  intended  to  be,  and  is,  absolute  and  perpetual.  To  make  the 
enjojTuent  of  a  right  dependent  upon  an  impossible  condition  is 
equivalent  to  an  absolute  denial  of  the  right  under  any  condition, 
and  such  denial,  enforced  for  a  past  act,  is  nothing  less  than  pun- 
ishment imposed  for  that  act.  It  is  a  misapplication  of  terms  to 
call  it  anything  else. 


GUMMING  S    V.    STATE    OF    MISSOURI.  391/ 

'Now,  some  of  the  acts  to  which  the  expurgatory  oath  is  di-< 
rected  were  not  offenses  at  the  time  they  were  committed.  It  was 
no  offense  against  any  law  to  enter  or  leave  the  State  of  Missouri 
for  the  purpose  of  avoiding  enrollment  or  draft  in  the  military 
service  of  the  United  States,  however  much  the  evasion  of  such 
service  might  be  the  subject  of  moral  censure.  Clauses  which 
prescribe  a  penalty  for  an  act  of  this  nature  are  within  the  terms 
of  the  definition  of  an  ex  post  facto  law — "they  impose  a  punish- 
ment for  an  act  not  punishable  at  the  time  it  was  committed." 

Some  of  the  acts  at  which  the  oath  is  directed  constituted  high 
offenses  at  the  time  they  were  committed,  to  which,  upon  convic- 
tion, fine  and  imprisonment,  or  other  heavy  penalties,  were  at- 
tached. The  clauses  which  provide  a  further  penalty  for  these 
acts  are  also  within  the  definition  of  an  ex  post  facto  law — "they 
impose  additional  punishment  to  that  prescribed  when  the  act 
was  committed." 

And  this  is  not  all.  The  clauses  in  question  subvert  the  pre- 
sumptions of  innocence,  and  alter  the  rules  of  evidence,  which 
heretofore,  under  the  universally  recognized  principles  of  the 
common  law,  have  been  supposed  to  be  fundamental  and  un- 
changeable. They  assume  that  the  parties  are  guilty;  they  call 
upon  the  parties  to  establish  their  innocence;  and  they  declare 
that  such  innocence  can  be  shown  only  in  one  way — ^by  an  inqui- 
sition, in  the  form  of  an  expurgatory  oath,  into  the  consciences 
of  the  parties. 

The  objectionable  character  of  these  clauses  will  be  more  ap- 
parent if  we  put  them  into  the  ordinary  form  of  a  legislative  act. 
Thus,  if  instead  of  the  general  provisions  in  the  constitution  the 
convention  had  provided  as  follows:  Be  it  enacted,  that  all  per- 
sons who  have  been  in  armed  hostility  to  the  United  States  shall, 
upon  conviction  thereof,  not  only  be  punished  as  the  laws  pro- 
vided at  the  time  the  offenses  charged  were  committed,  but  shall 
also  be  thereafter  rendered  incapable  of  holding  any  of  the  offices, 
trusts,  and  positions,  and  of  exercising  any  of  the  pursuits  men- 
tioned in  the  second  article  of  the  constitution  of  Missouri; — no 
one  would  have  any  doubt  of  the  nature  of  the  enactment.  It 
would  be  an  ex  post  facto  law,  and  void;  for  it  would  add  a  new 
punishment  for  an  old  offense.  So,  too,  if  the  convention  had 
passed  an  enactment  of  a  similar  kind  with  reference  to  those  acts 
which  do  not  constitute  offenses.  Thus,  had  it  provided  as  fol- 
lows: Be  it  enacted,  that  all  persons  who  have  heretofore,  at  any 
time,  entered  or  left  the  State  of  Missouri,  with  intent  to  avoid 
enrollment  or  draft  in  the  military  service  of  the  United  States, 


392  CASES  ON  CONSTITUTIONAL  LAW. 

shall,  upon  conviction  thereof,  be  forever  rendered  incapable  of 
holding  any  office  of  honor,  trust,  or  profit  in  the  State,  or  of 
teaching  in  any  seminary  of  learning,  or  of  preaching  as  a  min- 
ister of  the  gospel  of  any  denomination,  or  of  exercising  any  of 
the  professions  or  pursuits  mentioned  in  the  second  article  of  the 
constitution; — ^there  would  be  no  question  of  the  character  of  the 
enactment.  It  would  be  an  ex  post  facto  law,  because  it  would 
impose  a  punishment  for  an  act  not  punishable  at  the  time  it  was 
committed. 

The  provisions  of  the  constitution  of  Missouri  accomplish  pre- 
cisely what  enactments  like  those  supposed  would  have  accom- 
plished. They  impose  the  same  penalty,  without  the  formality  of 
a  judicial  trial  and  conviction;  for  the  parties  embraced  by  the 
supposed  enactments  would  be  incapable  of  taking  the  oath  pre- 
scribed; to  them  its  requirement  would  be  an  impossible  condi- 
tion. Now,  as  the  State,  had  she  attempted  the  course  supposed, 
would  have  failed,  it  must  follow  that  any  other  mode  producing 
the  same  result  must  equally  fail.  The  provision  of  the  Federal 
Constitution,  intended  to  secure  the  liberty  of  the  citizen,  can- 
not be  evaded  by  the  form  in  which  the  power  of  the  State  is 
exerted.  If  this  were  not  so,  if  that  which  cannot  be  accom- 
plished by  means  looking  directly  to  the  end,  can  be  accom- 
plished by  indirect  means,  the  inhibition  may  be  evaded  at  pleasure. 
No  kind  of  oppression  can  be  named,  against  which  the  framers 
of  the  Constitution  intended  to  guard,  which  may  not  be  effected. 
Take  the  case  supposed  by  counsel — ^that  of  a  man  tried  for  trea- 
son and  acquitted,  or,  if  convicted,  pardoned — ^the  legislature 
may  nevertheless  enact  that,  if  the  person  thus  acquitted  or  par- 
doned does  not  take  an  oath  that  he  never  has  committed  the  acts 
charged  against  him,  he  shall  not  be  permitted  to  hold  any  office 
of  honor  or  trust  or  profit,  or  pursue  any  avocation  in  the  State. 
Take  the  case  before  us; — ^the  constitution  of  Missouri,  as  we  have 
seen,  excludes,  on  failure  to  take  the  oath  prescribed  by  it,  a  large 
class  of  persons  within  her  borders  from  numerous  positions  and 
pursuits;  it  would  have  been  equally  within  the  power  of  the 
State  to  have  extended  the  exclusion  so  as  to  deprive  the  parties, 
who  are  unable  to  take  the  oath,  from  any  avocation  whatever  in 
the  State.  Take  still  another  case: — suppose  that  in  the  progress 
of  events,  persons  now  in  the  minority  in  the  State  should  obtain 
the  ascendancy,  and  secure  the  control  of  the  government;  noth- 
ing could  prevent,  if  the  constitutional  prohibition  can  be  evaded, 
the  enactment  of  a  provision  requiring  every  person,  as  a  condi- 
tion of  holding  any  position  of  honor  or  trust,  or  of  pursuing  any 


CUMMINGS   V.    STATE    OF   MISSOURI.  393 

avocation  in  the  State,  to  take  an  oath  that  he  had  never  advo- 
cated or  advised  or  supported  the  imposition  of  the  present  expur- 
gatory  oath.  Under  this  form  of  legislation  the  most  flagrant  in- 
vasion of  private  rights,  in  periods  of  excitement,  may  be  enacted, 
and  individuals,  and  even  whole  classes,  may  be  deprived  of  polit- 
ical and  civil  rights. 

A  question  arose  in  New  York,  soon  after  the  treaty  of  peace  of 
1783,  upon  a  statute  of  that  State,  which  involved  a  discussion  of 
the  nature  and  character  of  these  expurgatory  oaths,  when  used 
as  a  means  of  inflicting  punishment  for  past  conduct.  The  subject 
was  regarded  as  so  important,  and  the  requirement  of  the  oath 
such  a  violation  of  the  fundamental  principles  of  civil  liberty,  and 
the  rights  of  the  citizen,  that  it  engaged  the  attention  of  eminent 
lawyers  and  distinguished  statesmen  of  the  time,  and  among  others 
of  Alexander  Hamilton.  We  will  cite  some  passages  of  a  paper 
left  by  him  on  the  subject,  in  which,  with  his  characteristic  full- 
ness and  ability,  he  examines  the  oath,  and  demonstrates  that  it 
is  not  only  a  mode  of  inflicting  punishment,  but  a  mode  in  viola- 
tion of  all  the  constitutional  guarantees,  secured  by  the  Revolu- 
tion, of  the  rights  and  liberties  of  the  people, 

"If  we  examine  it"  (the  measure  requiring  the  oath),  said  this 
great  lawyer,  "with  an  unprejudiced  eye,  we  must  acknowledge, 
not  only  that  it  was  an  invasion  of  the  treaty,  but  a  subversion 
of  one  great  principle  of  social  security,  to  wit:  that  every  man 
shall  be  presumed  innocent  until  he  is  proved  guilty.  This  was 
to  invert  the  order  of  things;  and  instead  of  obliging  the  State 
to  prove  the  guilt,  in  order  to  inflict  the  penalty,  it  was  to  oblige 
the  citizen  to  establish  his  own  innocence  to  avoid  the  penalty. 
It  was  to  excite  scruples  in  the  honest  and  conscientious,  and  to 
hold  out  a  bribe  to  perjury.  ...  It  was  a  mode  of  inquiry 
[as  to]  who  had  committed  any  of  those  crimes  to  which  the 
penalty  of  disqualification  was  annexed,  with  this  aggravation, 
that  it  deprived  the  citizen  of  the  benefit  of  that  advantage,  which 
he  would  have  enjoyed  by  leaving,  as  in  all  other  cases,  the  burden 
of  the  proof  upon  the  prosecutor. 

"To  place  this  matter  in  a  still  clearer  light,  let  it  be  supposed 
that,  instead  of  the  mode  of  indictment  and  trial  by  jury,  the  legis- 
lature was  to  declare  that  every  citizen  who  did  not  swear  he  had 
never  adhered  to  the  King  of  Great  Britain  should  incur  all  the 
penalties  which  our  treason  laws  prescribe.  Would  this  not  be  a 
palpable  evasion  of  the  treaty,  and  a  direct  infringement  of  the 
Constitution?  The  principle  is  the  same  in  both  cases,  with  only 
this  difference  in  the  consequences — that  in  the  instance  already 


394  CASES  ON  CONSTITUTIONAL  LAW. 

acted  upon  the  citizen  forfeits  a  part  of  his  rights;  in  the  one 
supposed  he  would  forfeit  the  whole.  The  degree  of  punishment 
is  all  that  distinguishes  the  cases.  In  either,  justly  considered,  it 
is  substituting  a  new  and  arbitrary  mode  of  prosecution  to  that 
ancient  and  highly  esteemed  one  recognized  by  the  laws  and  con- 
stitution of  the  State.     I  mean  the  trial  by  jury. 

"Let  us  not  forget  that  the  Constitution  declares  that  trial  by 
jury,  in  all  cases  in  which  it  has  been  formerly  used,  should  re- 
main inviolate  forever,  and  that  the  legislature  should  at  no  time 
erect  any  new  jurisdiction  which  should  not  proceed  according  to 
the  course  of  the  common  law.  Nothing  can  be  more  repugnant 
to  the  true  genius  of  the  common  law  than  such  an  inquisition  as 
has  been  mentioned  into  the  consciences  of  men.  ...  If 
any  oath  with  retrospect  to  past  conduct  were  to  be  made  the 
condition  on  which  individuals,  who  have  resided  within  the  Brit- 
ish lines,  should  hold  their  estates,  we  should  immediately  see 
that  this  proceeding  would  be  tyrannical,  and  a  violation  of  the 
treaty;  and  yet,  when  the  same  mode  is  employed  to  divert  that 
right,  which  ought  to  be  deemed  still  more  sacred,  many  of  us 
are  so  infatuated  as  to  overlook  the  mischief. 

"To  say  that  the  persons  who  will  be  affected  by  it  have  previ- 
ously forfeited  that  right,  and  that,  therefore,  nothing  is  taken 
away  from  them,  is  a  begging  of  the  question.  How  do  we  know 
who  are  the  persons  in  this  situation?  If  it  be  answered,  this  is 
the  mode  taken  to  ascertain  it — ^the  objection  returns — 'tis  an 
improper  mode;  because  it  puts  the  most  essential  interests  of  the 
citizen  upon  a  worse  footing  than  we  should  be  willing  to  tolerate 
where  inferior  interests  were  concerned;  and  because,  to  elude  the 
treaty,  it  substitutes  for  the  established  and  legal  mode  of  investi- 
gating crimes  and  inflicting  forfeitures,  one  that  is  unknown  to 
the  Constitution,  and  repugnant  to  the  genius  of  our  law."     .     .     . 

The  judgment  of  the  Supreme  Court  of  Missouri  must  be  re- 
versed, and  the  cause  remanded,  with  directions  to  enter  a  judg- 
ment reversing  the  judgment  of  the  Circuit  Court,  and  directing 
that  court  to  discharge  the  defendant  from  imprisonment,  and  suf- 
fer him  to  depart  without  delay.  And  it  is  so  ordered. 

The  Chief  Justice,  and  Messrs.  Justices  Swayxe,  Davis, 
and  Miller  dissented.     .     .     . 

Note. — The  case  of  Ex  parte  Garland,  4  Wallace,  333,  presented 
a  similar  state  of  facts,  and  the  dissenting  opinion  of  Justice 
Miller,  4  Wallace,  382,  applies  to  both  these  cases. 


X.    IMPAIRMENT  OF  CONTRACTS. 


FLETCHER   v.    PECK. 
6  Cranch,  87.    Decided  1810. 

Erkor  to  the  circuit  court  of  the  United  States  for  the  district 
of  Massachusetts,  in  an  action  of  covenant  brought  by  Fletcher 
againgt-Eeck.     ... 

March  16,  1810.  Marshall,  C.  J.,  delivered  the  opinion  of  the 
court  as  follows: 

The  pleadings  being  now  amended,  this  cause  comes  on  again 
to  be  heard  on  sundry_demurrers,  and  on  a  special  verdict. 

This  suit  was  instituted  on  several  covenants  contained_Jn  a 
deed  made  by_john  Peck,  the  defendant  in  error,  conveying  to 
Robert  Fletcher,  the  plaintiff  in  error,  certain  lands  which  were 
part_c)fa^  large  purchase  made  by  James  Gunn  and  others,  in  the 
year  1795,  from  the  State  of  Georgia,  the  contract  for  which  was"" 
made  in  the  form  of  a  bill  passed  by  the  legislature  of  that  State. 

The  first  count  in  the  declaration  set  forth  a  breach  in  the  \ 
second  covenant  contained  in  the  deed.     The  covenant  is,  "that 
the  legislature  of  the  State  of  Georgia,  at  the  time  of  passing  the 
act  of  sale  aforesaid,  had  good  right  to  sell  and  dispose  of  the  same  , 
in  manner  pointed  out  by  the  said  act."    The  breach  assigned  is,/ 
that  the  legislature  had  no  power  to  sell. 

I      The  plea  in  bar  sets   forth  the  constitution  of  the  State  of 

1  Georgia,  and  avers  that  the  lands  sold  by  the  defendant  to  the 

plaintiff,  were  within  that  State.    It  then  sets  forth  the  granting 

act,  and  avers  the  power  of  the  legislature  to  sell  and  dispose  of 

the  premises  as  pointed  out  by  the  act. 

To  this  plea  the  plaintiff  below  demurred,  and  the  defendant 
Joined  in  demurrer. 

1  That  the  legislature  of  Georgia,  unless  restrained  by  its  own 
I  constitution,  possesses  the  power  of  disposing  of  the  unappro- 
Ipriated  lands  within  its  own  limits,  in  such  manner  as  its  own  judg- 
ment shall  dictate,  is  a  proposition  not  to  be  controverted.     The 

395 


396  CASES  ON  CONSTITUTIONAL  LAW. 

only  question,  then,  presented  by  this  demurrer,  for  the  consid- 
eration of  the  court,  is  this,  did  the  then  constitution  of  the  State 
of  Georgia  prohibit  the  legislature  to  dispose  of  the  lands,  which 
were  the  subject  of  this  contract,  in  the  manner  stipulaited  by  the 
contract? 

The  question  whether  a  law  be  void  for  its  repugnancy  to  the 
constitution,  is,  at  all  times,  a  question  of  much  delicacy,  which 
ought  seldom,  if  ever,  to  be  decided  in  the  affirmative,  in  a  doubt- 
ful case.  The  court,  when  impelled  by  duty  to  render  such  a 
judgment,  would  be  unworthy  of  its  station,  could  it  be  unmind- 
ful of  the  solemn  obligations  which  that  station  imposes.  But 
it  is  not  on  slight  implication  and  vague  conjecture  that  the  leg- 
islature  is  to  be  pronounced  to  have  transcended  its  powers,  and 
its  acts  to  be  considered  as  void.  The  opposition  between  the 
constitution  and  the  law  should  be  such  that  the  judge  feels  a 
clear  and  strong  conviction  of  their  incompatibility  with  each 
other.  ^~'  ~'~~ 

In  this  case  the  court  can  perceive  no  such  opposition.  In  the 
constitution  of  Georgia,  adopted  in  the  year  1789,  the  court  can 
perceive  no  restriction  on  the  legislative  power,  which  inhibits  the 
passage  of  the  act  of  1795.  They  cannot  say  that,  in  passing 
that  act,  the  legislature  has  transcended  its  powers,  and  violated 
the  constitution. 

In  overruling  the  demurrer,  therefore,  to  the  first  plea,  the  cir- 
cuit court  committed  no  error. 

The  third  covenant  is,  that  all  the  title  which  the  State  of 
Georgia  ever  had  in  the  premises  had  been  legally  conveyed  to^ 
John  Peck,  the  grantor. 

The  second  count  assigns,  in  substance,  as  a  breach  of  this 
covenant,  that  the  original  grantees  from  the  State  of  Georgia 
promised  and  assured  divers  members  of  the  legislature,  then  sit- 
ting in  general  assembly,  that  if  the  said  members  would  assent 
to,  and  vote  for,  the  passing  of  the  act,  and  if  the  said  bill  should 
pass,  such  members  should  have  a  share  of,  and  be  interested  in, 
all  the  lands  purchased  from  the  said  State  by  virtue  of  such 
law.  And  that  divers  of  the  said  members,  to  whom  the  said  \ 
promises  were  made,  were  unduly  influenced  thereby,  and,  under  ; 
such  influence,  did  vote  for  the  passing  of  the  said  bill;  by  rea- 
son whereof  the  said  law  was  a  nullity,  &c.,  and  so  the  title  of  the 
State  of  Georgia  did  not  pass  to  the  said  Peck,  &c. 

The  plea  to  this  count,  after  protesting  that  the  promises  it 
alleges  were  not  made,  avers,  that  until  after  the  purchase  made  J 
from  the  original  grantees  by  James  Greenleaf,  under  whom  the 


FLETCHER  v.  PECK.  397 

said  Peck  claims,  neither  the  said  James  Greenleaf,  nor  the  said 
Peck,  nor  any  of  tlie  mesne  vendors  between  the  said  Greenleaf 
and  Peck,  had  any  notice  or  knowledge  that  any  such  promises  or 
assurances  were  made  by  the  said  original  grantees,  or  either  of 
them,  to  any  of  the  members  of  the  legislature  of  the  State  of 
Georgia. 

To  this  plea  the  plaintiff  demurred  generally,  and  the  defend- 
ant joined  in  the  demurrer. 

That  corruption  should  find  its  way  into  the  governments  of 
our  infant  republics,  and  contaminate  the  very  source  of  legisla- 
tion, or  that  impure  motives  should  contribute  to  the  passage  of 
a  law,  or  -the  formation  of  a  legislative  contract,  are  circumstances 
most  deeply  to  be  deplored.  How  far  a  court  of  justice  would,  in 
any  case,  be  competent,  on  proceedings  instituted  by  the  State 
itself,  to  vacate  a  contract  thus  formed,  and  to  annul  rights  ac- 
quired under  that  contract,  by  third  persons  having  no  notice  of 
the  improper  means  by  which  it  was  obtained,  is  a  question  which 
the  court  would  approach  with  much  circumspection.  It  may 
well  be  doubted  how  far  the  validity  of  a  law  depends  upon  the 
motives  of  its  framers,  and  how  far  the  particular  inducements, 
operating  on  members  of  the  supreme  sovereign  power  of  a  State, 
to  the  formation  of  a  contract  by  that  power,  are  examinable  in  a 
court  of  justice.  If  the  principle  be  conceded,  that  an  act  of  the  i 
supreme  sovereign  power  might  be  declared  null  by  a  court  ini 
consequence  of  the  means  which  procured  it,  still  would  there  be  \ 
much  difficulty  in  saying  to  what  extent  those  means  must  be  ^ 
applied  to  produce  this  effect.  Must  it  be  direct  corruption,  or 
would  interest  or  undue  influence  of  any  kind  be  sufficient?  Must 
the  vitiating  cause  operate  on  a  majority,  or  on  what  number  of 
the  members?  Would  the  act  be  null,  whatever  might  be  the  wish 
of  the  nation,  or  would  its  obligation  or  nullity  depend  upon  the 
public  sentiment?  ^ 

If  the  majority  of  the  legislature  be  corrupted,  it  may  well  be  * 
doubted  whether  it  be  within  the  province  of  the  judiciary  to 
control  their  conduct,  and,  if  less  than  a  majority  act  from  impure 
motives,  the  principle  by  which  judicial  interference  would  be^ 
regulated  is  not  clearly  discerned. 

Whatever  difficulties  this  subject  might  present,  when  viewed 
under  aspects  of  which  it  may  be  susceptible,  this  court  can  per- 
ceive none  in  the  particular  pleadings  now  under  consideration. 

This  is  not  a  bill  brought  by  the  State  of  Georgia  to  annul  the 
contract,  nor  does  it  appear  to  the  court,  by  this  count,  that  the 
State  of  Georgia  is  dissatisfied  with  the  sale  that  has  been  made. 


398  CASES    ON    CONSTITUTIONAL    LAW. 

The  case,  as  made  out  in  the  pleadings,  is  simply  this.    One  indi- 

ividual  who  holds  lands  in  the  State  of  Georgia,  under  a  deed! 

'covenanting  that  the  title  of  Georgia  was  in  the  grantor,  brings 
an  action  of  covenant  upon  this  deed,  and  assigns,  as  a  breach,  , 
that  some  of  the  members  of  the  legislature  were  induced  to  vote  \ 

jin  favor  of  the  law  which  constituted  the   contract,  by  being  j 

1  promised  an  interest  in  it,  and  that  therefore  the  act  is  a  mere^ 

Wllity. 

This  solemn  question  cannot  be  brought  thus  collaterally  and 
incidentally  before  the  court.  It  would  be  indecent  in  the  ex- 
treme, upon  a  private  contract  between  two  individuals,  to  enter 
into  an  inquiry  respecting  the  corruption  of  the  sovereign  power 

j  of  a  State.    If  the  title  be  plainly  deduced  from  a  legislative  act, 

I  which  the  legislature  might  constitutionally  pass,  if  the  act  be 
clothed  with  all  the  requisite  forms  of  a  law,  a  court,  sitting  as  a 
court  of  law,  cannot  sustain  a  suit  brought  by  one  individual 
against  another  founded  on  the  allegation  that  the  act  is  a  nullity, 
in  consequence  of  the  impure  motives  which  influenced  certain 

,  members  of  the  legislature  which  passed  the  law. 

\  The  circuit  court,  therefore,  did  right  in  overruling  this  de- 
murrer. 

The  fourth  covenant  in  the  deed  is,  that  the  title  to  the  prem- 
ises has  been  in  no  way  constitutionally  or  legally  impaired  by 
virtue  of  any  subsequent  act  of  any  subsequent  legislature  of  the 
State  of  Georgia. 

The  third  count  recites  the  undue  means  practised  on  certain 
members  of  the  legislature,  as  stated  in  the  second  count,  and 
then  alleges  that,  in  consequence  of  these  practices  and  of  other 
causes,  a  subsequent  legislature  passed  an  act  annulling  and  re- 
scinding the  law  under  which  the  conveyance  to  the  original 
grantees  was  made,  declaring  that  conveyance  void,  and  asserting 
the  title  of  the  State  to  the  lands  it  contained.  The  count  pro- 
ceeds to  recite  at  large  this  rescinding  act,  and  concludes  with 
averring  that,  by  reason  of  this  act,  the  title  of  the  said  Peck  in 
the  premises  was  constitutionally  and  legally  impaired,  and  ren- 
dered null  and  void. 

After  protesting  as  before  that  no  such  promises  were  made  as 
stated  in  this  count,  the  defendant  again  pleads  that  himself  and 
the  first  purchaser  under  the  original  grantees,  and  all  interme- 

idiate  holders  of  the  property,  were  purchasers  without  notice. 
\    To  this  plea  there  is  a  demurrer  and  joinder. 

The  importance  and  the  difficulty  of  the  questions  presented 
by  these  pleadings,  are  deeply  felt  by  the  court. 


FLETCHER  v.  PECK.  399 

The  lands  in  controversy  vested  absolutely  in  James  Gunn  and 
others,  the  original  grantees,  by  the  conveyance  of  the  governor, 
made  in  pursuance  of  an  act  of  assembly  to  which  the  legislature 
was  fully  competent.  Being  thus  in  full  possession  of  the  legal 
estate,  they,  for  a  valuable  consideration,  conveyed  portions  of 
the  land  to  those  who  were  willing  to  purchase.  If  the  original 
transaction  was  infected  with  fraud,  these  purchasers  did  not  par 
ticipate  in  it,  and  had  no  notice  of  it.  They  were  innocent.  Yet 
the  legislature  of  Georgia  has  involved  them  in  the  fate  of  the 
first  parties  to  the  transaction,  and,  if  the  act  be  valid,  has  anni-, 
hilated  their  rights  also. 

The  legislature  of  Georgia  was  a  party  to  this  transaction;  and 
for  a  party  to  pronounce  its  own  deed  invalid,  whatever  cause  may 
be  assigned  for  its  invalidity,  must  be  considered  as  a  mere  act  of 
power  which  must  find  its  vindication  in  a  train  of  reasoning  not 
often  heard  in  courts  of  Justice. 

But  the  real  party,  it  is  said,  are  the  people,  and  when  their 
agents  are  unfaithful,  the  acts  of  those*  agents  cease  to  be 
obligatory. 

It  is,  however,  to  be  recollected  that  the  people  can  act  only  by 
these  agents,  and  that,  while  within  the  powers  conferred  on  them, 
their  acts  must  be  considered  as  the  acts  of  the  people.  If  the 
agents  be  corrupt,  others  may  be  chosen,  and  if  their  contracts  be 
examinable,  the  common  sentiment,  as  well  as  common  usage  of 
mankind,  points  out  a  mode  by  which  this  examination  may  be 
made,  and  their  validity  determined. 

If  the  legislature  of  Georgia  was  not  bound  to  submit  its  pre- 
tensions to  those  tribunals  which  are  established  for  the  security 
of  property,  and  to  decide  on  human  rights,  if  it  might  claim  to 
itself  the  power  of  judging  in  its  own  case,  yet  there  are  certain 
great  principles  of  justice,  whose  authority  is  universally  acknowl- 
edged, that  ought  not  to  be  entirely  disregarded.       -  -^ 

If  the  legislature  be  its  own  judge  in  its  own  case,  it  would  ] 
seem  equitable  that  its  decisions  should  be  regulated  by  those/ 
rules  which  would  have  regulated  the  decision  of  a  judicial  tri- 
bunal. The  question  was,  in  its  nature,  a  question  of  title,  and 
the  tribunal  which  decided  it  was  either  acting  in  the  character 
of  a  court  of  justice,  and  performing  a  duty  usually  assigned  to  a 
court,  or  it  was  exerting  a  mere  act  of  power  in  which  it  was  con- 
trolled only  by  its  own  will.  ^-^ 

If  a  suit  be  brought  to  set  aside  a  conveyance  obtained  by  fraud, 
and  the  fraud  be  clearly  proved,  the  conveyance  will  be  set  aside, 
as  between  the  parties;   but  the  rights  of  third  persons,  who  are 


400  CASES    ON    CONSTITUTIONAL    LAW. 

purchasers  without  notice,  for  a  valuable  consideration,  cannot  be 
disregarded.  Titles,  which,  according  to  every  legal  test,  are  per- 
fect, are  acquired  with  that  confidence  which  is  inspired  by  the 
opinion  that  the  purchaser  is  safe.  If  there  be  any  concealed  de- 
fect, arising  from  the  conduct  of  those  who  had  held  the  property 
long  before  he  acquired  it,  of  which  he  had  no  notice,  that  con- 
cealed defect  cannot  be  set  up  against  him.  He  has  paid  his 
money  for  a  title  good  at  law;  he  is  innocent,  whatever  may  be 
the  guilt  of  others,  and  equity  will  not  subject  him  to  the  pen- 
alties attached  to  that  guilt.  All  titles  would  be  insecure,  and  the 
intercourse  between  man  and  man  would  be  very  seriously  ob- 
structed, if  this  principle  be  overturned. 

r  A  court  of  chancery,  therefore,  had  a  bill  been  brought  to  set 
(aside  the  conveyance  made  to  James  Gunn  and  others,  as  being 
/obtained  by  improper  praetices  with  the  legislature,  whatever 
I  might  have  been  its  decision  as  respected  the  original  grantees, 
would  have  been  bound,  by  its  own  rules,  and  by  the  clearest  prin- 
/  ciples  of  equity,  to  leave  unmolested  those  who  were  purchasers, 
I  without  notice,  for  a  valuable  consideration. 

If  the  legislature  felt  itself  absolved  from  those  rules  of  prop- 
erty which  are  common  to  all  the  citizens  of  the  United  States, 
and  from  those  principles  of  equity  which  are  acknowledged  in 
all  our  courts,  its  act  is  to  be  supported  by  its  power  alone,  and 
the  same  power  may  divest  any  other  individual  of  his  lands,  if  it 
shall  be  the  will  of  the  legislature  so  to  exert  it. 

It  is  not  intended  to  speak  with  disrespect  of  the  legislature  of 
Georgia,  or  of  its  acts.  Far  from  it.  The  question  is  a  general 
question,  and  is  treated  as  one.  For  although  such  powerful  ob- 
jections to  a  legislative  grant,  as  are  alleged  against  this,  may  not 
again  exist,  yet  the  principle,  on  which  alone  this  rescinding  act 
is  to  be  supported,  may  be  applied  to  every  case  to  which  it  shall  be 
the  will  of  any  legislature  to  apply  it.  The  principle  is  this:  that 
a  legislature  may,  by  its  own  act,  divest  the  vested  estate  of  any 
man  whatever,  for  reasons  which  shall,  by  itself,  be  deemed  suf- 
ficient. 

In  this  case  the  legislature  may  have  had  ample  proof  that  the 
original  grant  was  obtained  by  practices  which  can  never  be  too 
much  reprobated,  and  which  would  have  justified  its  abrogation  so 
far  as  respected  those  to  whom  crime  was  imputable.  But  the 
grant,  when  issued,  conveyed  an  estate  in  fee-simple  to  the  grantee, 
clothed  with  all  the  solemnities  which  law  can  bestow.  This  estate 
was  transferable;  and  those  who  purchased  parts  of  it  were  not 
stained  by  that  guilt   which  infected  the   original  transaction. 


FLETCHER  v.  PECK.  401 

Their  case  is  not  distinguishable  from  the  ordinaiy  case  of  pur- 
chasers of  a  legal  estate  without  knowledge  of  any  secret  fraud 
which  might  have  led  to  the  emanation  of  the  original  grant. 
According  to  the  well-known  course  of  equity,  their  rights  could 
not  be  affected  by  such  fraud.  Their  situation  was  the  same, 
their  title  was  the  same,  with  that  of  every  other  member  of  the 
community  who  holds  land  by  regular  conveyances  from  the  orig- 
inal patentee. 

Is  the  jpower  of  the  legislature  competent  to  the  annihilation  of 
such  title,  and  to  a  resumption  of  the  property  tlius  held? 

The  principle  asserted  is,  that  one  legislature  is  competent  to 
repeal  any  act  which  a  former  legislature  was  competent  to  pass; 
and  that  one  legislature  cannot  abridge  the  powers  of  a  succeed- 
ing legislature. 

The  correctness  of  this  pxinciple,  so  far  as  respects  general  leg- 
islation, can  never  be  controverted.  But  if  an  act  be  done  under 
a  law,  a  succeeding  legislature  cannot  undo  it.  The  past  cannot 
be  recalled  by  the  most  absolute  power.  Conveyances  have  been 
made,  those  conveyances  have  vested  legal  estates,  and,  if  those 
estates  may  be  seized  by  the  sovereign  authority,  still,  that  they  . 
originally  vested  is  a  fact,  and  cannot  cease  to  be  a  fact. 

When,  then,  a  law  is  in  its  nature  a  contract,  when  absolute 
rights  have  vested  under  that  contract,  a  repeal  of  the  law  cannot 
divest  those  rights;  and  the  act  of  annulling  them,  if  legitimate, 
is  rendered  so  by  a  power  applicable  to  the  case  of  every  individual 
in  the  community. 

It  may  well  be  doubted  whether  the  nature  of  society  and  of 
jgovernment  does  not  prescribe  some  limits  to  the  legislative  power; 
land  if  any  be  prescribed,  where  are  they  to  be  found,  if  the  prop- 
jerty  of  an  individual,  fairly  and  honestly  acquired,  may  be  seized 
*  without  compensation? 

To  the  legislature  all  legislative  power  is  granted;  but  the  ques- 
tion, whether  the  act  of  transferring  the  property  of  an  individual 
to  the  public,  be  in  the  nature  of  the  legislative  power,  is  well 
worthy  of  serious  reflection. 

It  is  the  peculiar  province  of  the  legislature  to  prescribe  general, 
rules  for  the  government  of  society;  the  application  of  those 
rules  to  individuals  in  society  would  seem  to  be  the  duty  of  other 
departments.  How  far  the  power  of  giving  the  law  may  involve 
every  other  power,  in  cases  where  the  constitution  is  silent,  never 
has  been,  and  perhaps  never  can  be,  definitely  stated. 

The  validity  of  this  rescinding  act,  then,  might  well  be  doubted, 
were  Georgia  a  single  sovereign  power.    But  Georgia  cannot  be 
26 


403  CASES    ON    CONSTITUTIONAL    LAW. 

viewed  as  a  single,  unconnected,  sovereign  power,  on  whose  legis- 
lature no  other  restrictions  are  imposed  than  may  be  found  in  its 
own  constitution.  She  is  a  part  of  a  large  empire;  she  is  a  mem- 
ber of  the  American  Union;  and  that  union  has  a  constitution  the 
supremacy  of  which  all  acknowledge,  and  which  imposes  limits  to 
the  legislatures  of  the  several  States,  which  none  claim  a  right  to 
pass.  The  constitution  of  the  United  States  declares  that  no  State 
shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing 
the  obligation  of  contracts. 

1     Does  the  case  now  under  consideration  come  within  this  pro- 

'hibitory  section  of  the  constitution? 

In  considering  this  very  interesting  question,  we  immediately 
ask  ourselves  what  is  a  contract?    Is  a  grant  a  contract? 

A  contract  is  a  compact  between  two  or  more  parties,  and  is 
either  executory  or  executed.  An  executory  contract  is  one  in 
which  a  party  binds  himself  to  do,  or  not  to  do,  a  particular  thing; 
such  was  the  law  under  which  the  conveyance  was  made  by  the 
governor.  A  contract  executed  is  one  in  which  the  object  of  con- 
tract is  performed;  and  this,  says  Blackstone,  differs  in  nothing 
from  a  grant.  The  contract  between  Georgia  and  the  purchasers 
was  executed  by  the  grant.  A  contract  executed,  as  well  as  one 
which  is  executory,  contains  obligations  binding  on  the  parties.  A 
grant,  in  its  own  nature,  amounts  to* an  extinguishment  of  the 
right  of  the  grantor,  and  implies  a  contract  not  to  reassert  that 
right.    A  party  is,  therefore,  always  estopped  by  his  own  grant. 

Since,  then,  in  fact,  a  grant  is  a  contract  executed,  the  obliga- 
tion of  which  still  continues,  and  since  the  constitution  uses  the 
general  term  contract,  without  distinguishing  between  those  which 
are  executory  and  those  which  are  executed,  it  must  be  con- 
strued to  comprehend  tiie  latter  as  well  as  the  former.  A  law 
annulling  conveyances  between  individuals,  and  declaring  that  the 
grantors  should  stand  seized  of  their  former  estates,  notwithstand- 
ing those  grants,  would  be  as  repugnant  to  the  constitution  as  a 
law  discharging  the  vendors  of  property  from  the  obligation  of 
executing  their  contracts  by  conveyances.  It  would  be  strange 
if  a  contract  to  convey  was  secured  by  the  constitution,  while  an 
absolute  conveyance  remained  unprotected. 

I  If,  under  a  fair  construction  of  the  constitution,  grants  are 
comprehended  under  the  term  contracts,  is  a  grant  from  the 
State  excluded  from  the  operation  of  the  provision  ?  Is  the  clause 
to,  be  considered  as  inhibiting  the  State  from  impairing  the  obli- 
gation of  contracts  between  two  individuals,  but  as  excluding 
from  that  inhibition  contracts  made  with  itself? 


FLETCHER  v.  PECK.  403 

The  words  themselves  contain  no  such  distinction.  They  are 
general,  and  are  applicable  to  contracts  of  every  description.  If 
contracts  made  with  the  State  are  to  be  exempted  from  their  opera^ 
tion,  the  exception  must  arise  from  the  character  of  the  contracting 
party,  not  from  the  words  which  are  employed. 

Whatever  respect  might  have  been  felt  for  the  state  sovereign- 
ties, it  is  not  to  be  disguised  that  the  framers  of  the  constitution 
viewed,  with  some  apprehension,  the  violent  acts  which  might 
grow  out  of  the  feelings  of  the  moment;  and  that  the  people  of 
the  United  States,  in  adopting  that  instrument,  have  manifested 
a  determination  to  shield  themselves  and  their  property  from  the 
effects  of  those  sudden  and  strong  passions  to  which  men  are  ex- 
posed. The  restrictions  on  the  legislative  power  of  the  States  are 
obviously  founded  in  this  sentiment;  and  the  Constitution  of  the 
United  States  contains  what  may  be  deemed  a  bill  of  rights  for 
the  people  of  each  State. 

No  State  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts. 

A  bill  of  attainder  may  affect  the  life  of  an  individual,  or  may 
confiscate  his  property,  or  may  do  both. 

In  this  form  the  power  of  the  legislature  over  the  lives  and 
fortunes  of  individuals  is  expressly  restrained.  What  motive,  then, 
for  implying,  in  words  which  import  a  general  prohibition  to  im- 
pair the  obligation  of  contracts,  an  exception  in  favor  of  the  right 
to  impair  the  obligation  of  those  contracts  into  which  the  State 
may  enter? 

The  State  legislatures  can  pass  no  ex  post  facto  law.  An  ex 
post  facto  law  is  one  which  renders  an  act  punishable  in  a  manner 
in  which  it  was  not  punishable  when  it  was  committed.  Such  a 
law  may  inflict  penalties  on  the  person,  or  may  inflict  pecuniary 
penalties  which  swell  the  public  treasury.  The  legislature  is  then 
prohibited  from  passing  a  law  by  which  a  man's  estate,  or  any  part 
of  it,  shall  be  seized  for  a  crime  which  was  not  declared,  by  some 
previous  law,  to  render  him  liable  to  that  punishment.  Why, 
then,  should  violence  be  done  to  the  natural  meaning  of  words  for 
the  purpose  of  leaving  to  the  legislature  the  power  of  seizing,  for 
public  use,  the  estate  of  an  individual  in  the  form  of  a  law  annul- 
ling the  title  by  which  he  holds  that  estate?  The  court  can  per- 
ceive no  sufficient  grounds  for  making  that  distinction.  This  re- 
scinding act  would  have  the  effect  of  an  ex  post  facto  Mw.  It 
forfeits  the  estate  of  Fletcher  for  a  crime  not  committed  by  him- 
self, but  by  those  from  whom  he  purchased.  This  cannot  be 
effected  in  the  form  of  an  ex  post  facto  law,  or  bill  of  attainder; 


404  CASES    ON    CONSTITUTIONAL    LAW. 

why,  then,  is  it  allowable  in  the  form  of  a  law  annulling  the 
original  grant? 

The  argument  in  favor  of  presuming  an  intention  to  except  a 
case,  not  excepted  by  the  words  of  the  constitution,  is  susceptible 
of  some  illustration  from  a  principle  originally  engrafted  in  that 
instrument,  though  no  longer  a  part  of  it.  The  constitution,  as 
passed,  gave  the  courts  of  the  United  States  jurisdiction  in  suits 
brought  against  individual  States.  A  State,  then,  which  violated 
its  own  contract,  was  suable  in  the  courts  of  the  United  States  for 
that  violation.  Would  it  have  been  a  defense  in  such  a  suit  to 
say  that  the  State  had  passed  a  law  absolving  itself  from  the  con- 
tract? It  is  scarcely  to  be  conceived  that  such  a  defense  could  be 
set  up.  And  yet,  if  a  State  is  neither  restrained  by  the  general 
principles  of  our  political  institutions,  nor  by  the  words  of  the 
constitution,  from  impairing  the  obligation  of  its  own  contracts, 
such  a  defense  would  be  a  valid  one.  This  feature  is  no  longer 
found  in  the  constitution;  but  it  aids  in  the  construction  of  those 
clauses  with  which  it  was  originally  associated. 

It  is,  then,  the  unanimous  opinion  of  the  court,  that,  in  this, 

case,  the  estate  having  passed  into  the  hands  of  a  purchaser  for  a 

[Valuable  consideration,  without  notice,  the  State  of  Georgia  was 

trestrained,  either  by  general  principles  which  are  common  to  our! 

ree  institutions,  or  by  the  particular  provisions  of  the  Constitu-j 

ion  of  the  United  States,  from  passing  a*law  whereby  the  estat^ 

f  the  plaintiff  in  the  premises  so  purchased  could  be  constituj 

ionally  and.lesrally  impaired  and  rendered  null  and  void.  I 

In  overruling  the  demurrer  to  the  3d  plea,  therefore,  there  is  no 
error.     .     .     . 

The  question,  whether  the  vacant  lands  within  the  United  States 
became  a  joint  property,  or  belonged  to  the  separate  States,  was  a 
momentous  question,  which,  at  one  time,  threatened  to  shake  the 
American  confederacy  to  its  foundation.  This  important  and 
dangerous  contest  has  been  compromised,  and  the  compromise  is 
not  now  to  be  disturbed. 

It  is  the  opinion  of  the  court,  that  the  particular  land  stated  in 
the  declaration  appears,  from  this  special  verdict,  to  lie  within  the 
State  of  Georgia,  and  that  the  State  of  Georgia  had  power  to 
grant  it. 

Some  difficulty  was  produced  by  the  language  of  the  covenant, 
and  o'f  the  pleadings.  It  was  doubted  whether  a  State  can  be 
seized  in  fee  of  lands  subject  to  the  Indian  title,  and  whether  a 
decision  that  they  were  seized  in  fee  might  not  be  construed  to 


STURGBS  V.   CROWNINSHIELD.  405 

amount  to  a  decision  that  their  grantee  might  maintain  an  eject- 
ment for  them,  notwithstanding  that  title. 

The  majority  of  the  court  is  of  opinion  that  the  nature  of  the 
Indian  title,  which  is  certainly  to  be  respected  by  all  courts,  until 
it  be  legitimately  extinguished,  is  not  such  as  to  be  absolutely  re- 
pugnant to  seizin  in  fee  on  the  part  of  the  State. 

Judgment  affirmed,  with  costs. 

[Me.  Justice  Johnson  delivered  a  separate  opinion.] 


STURGES  V.  CEOWXINSHIELD. 
4  Wheaton,  122.    Decided  1819. 

This  was  an  action  of  assumpsit,  brought -in  the  circuit  court  of  ^ 
Massachusetts,  against  the  defendant,  as  the  maker  of  two  prom- 
issory notes,  both  dated  at  New  York,  on  the  22d  of  March, 
1811,  for  the  sum  of  $771.86  each,  and  payable  to  the  plaintiff, 
one  on  the  1st  of  August,  and  the  other  on  the  15th  of  August, 
1811.     The  defendant  pleaded  his  discharge  under  "An  act  for 
the  benefit  of  insolvent  debtors  and  their  creditors,"  passed  by 
the  legislature  of  New  York,  the  3d  day  of  April,  1811.     After 
stating  the  provisions  of  the  said  act,  the  defendant's  plea  averred 
his  compliance  with  them,  and  that  he  was  discharged,  and  a  cer- 
tificate given  to  him  the  fifteenth  day  of  February,  1812.    To  this    1 
plea  there  was  a  general  demurrer,  and  joinder.    At  the  October    1 
term  of  the  circuit  court,  1817,  the  cause  came  on  to  be  argued 
and  heard  on  the  said  demurrer,  and  the  following  questions  arose,  J 
to  wit: — 

1.  Whether,  since  the  adoption  of  the  constitution  of  the  United 
States,  any  State  has  authority  to  pass  a  bankrupt  law,  or  whether 
the  power  is  exclusively  vested  in  the  congress  of  the  United 
States? 

2.  Whether  the  act  of  New  York,  passed  the  third  day  of  April, 
1811,  and  stated  in  the  plea  in  this  case,  is  a  bankrupt  act,  within 
the  meaning  of  the  constitution  of  the  United  States? 

3.  Whether  the  act  aforesaid  is  an  act  or  law  impairing  the 
obligation  of  contracts,  within  the  meaning  of  the  constitution  of 
the  United  States? 

4.  Whether  the  plea  is  a  good  and  sufficient  bar  of  the  plaint- 
iff's action? 


406  CASES    ON    CONSTITUTIONAL    LAW. 

And  after  hearing  counsel  upon  the  questions,  the  judges  of 
the  circuit  court  were  opposed  in  opinion  thereupon;  and  upon 
motion  of  the  plaintiff's  counsel,  the  questions  were  certified  to 
the  supreme  court,  for  their  final  decision.     .     .     . 

Maeshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  is  adjourned  from  the  court  of  the  United  States,  for 
the  first  circuit  and  the  district  of  Massachusetts,  on  several  points 
on  which  the  judges  of  that  court  were  divided,  which  are  stated 
in  the  record,  for  the  opinion  of  this  court.    The  first  is: — 

Whether,  since  the  adoption  of  the  constitution  of  the  United 
I  States,  any  State  has  authority  to  pass  a  bankrupt  law,  or  whether 
;the  power  is  exclusively  vested  in  the  congress  of  the  United 
'  States?     .     .     . 

Without  entering  further  into  the  delicate  inquiry  respecting 
the  precise  limitations  which  the  several  grants  of  power  to  con- 
gress, contained  in  the  constitution,  may  impose  on  the  state 
legislatures,  than  is  necessary  for  the  decision  of  the  question  be- 
fore the  court,  it  is  sufficient  to  say,  that,  until  the  power  to  pass 
uniform  laws  on  the  subject  of  bankruptcies  be  exercised  by  con- 
gress, the  States  are  not  forbidden  to  pass  a  bankrupt  law,  pro- 
•vided  it  contain  no  principle  which  violates  the  10th  section  of 
the  first  article  of  the  constitution  of  the  United  States. 

This  opinion  renders  it  totally  unnecessary  to  consider  the  ques- 
tion whether  the  law  of  New  York  is,  or  is  not,  a  bankrupt  law. 

We  proceed  to  the  great  question  on  which  the  cause  must  de- 
pend. Does  the  law  of  New  York,  which  is  pleaded  in  this  case, 
impair  the  obligation  of  contracts,  within  the  meaning  of  the 
constitution  of  the  United  States?  This  act  liberates  the  person 
of  the  debtor,  and  discharges  him  from  all  liability  for  any  debt 
previously  contracted,  on  his  surrendering  his  property  in  the 
manner  it  prescribes.  In  discussing  the  question  whether  a  State 
is  prohibited  from  passing  such  a  law  as  this,  our  first  inquiry  is 
into  the  meaning  of  words  in  common  use.  What  is  the  obliga- 
tion of  a  contract?  and  what  will  impair  it? 

It  would  seem  difficult  to  substitute  words  which  are  more  in- 
telligible, or  less  liable  to  misconstruction,  than  those  which  are 
to  be  explained.  A  contract  is  an  agreement  in  which  a  party 
undertakes  to  do,  or  not  to  do,  a  particular  thing.  The  law  binds 
him  to  perform  his  undertaking,  and  this  is,  of  course,  the  obliga- 
ftion  of  his  contract.  In  the  case  at  bar,  the  defendant  has  given 
jhis  promissory  note  to  pay  the  plaintiff  a  sum  of  money  on  or 
before  a  certain  day.    The  contract  binds  him  to  pay  that  sum  on 


I 


STURGES  V.    CROWNINSHIELD.  407 

that  day;  and  this  is  its  obligation.  Any  law  which  releases  a 
part  of  this  obligation,  m  '  in  the  literal  sense  of  the  word,  impair 
it.  Much  more  must  a  law  impair  it  which  makes  it  totally  in- 
valid, and  entirely  discharges  it. 

The  words  of  the  constitution,  then,  are  express,  and  incapable 
of  being  misunderstood.  They  admit  of  no  variety  of  construc- 
tion, and  are  acknowledged  to  apply  to  that  species  of  contract, 
an  engagement  between  man  and  man,  for  the  payment  of  money, 
which  has  been  entered  into  by  these  parties.  Yet  the  opinion 
that  this  law  is  not  within  the  prohibition  of  the  constitution,  has 
been  entertained  by  those  who  are  entitled  to  great  respect,  and 
has  been  supported  by  arguments  which  deserve  to  be  seriously  I 
considered. 

It  has  been  contended,  that  as  a  contract  can  only  bind  a  man  1 
to  pay  to  the  full  extent  of  his  property,  it  is  an  implied  condition 
that  he  may  be  discharged  on  surrendering  the  whole  of  it.  ' 

But  it  is  not  true  that  the  parties  have  in  view  only  the  prop-  I 
erty  in  possession  when  the  contract  is  formed,  or  that  its  obliga-  1 
tion  does  not  extend  to  future  acquisitions.  Industry,  talents,  ! 
and  integrity,  constitute  a  fund  which  is  as  confidently  trusted  as  I 
property  itself.  Future  acquisitions  are,  therefore,  liable  for  con-  ' 
tracts;  and  to  release  them  from  this  liability  impairs  their  obli- 
gation. 

It  has  been  argued,  that  the  States  are  not  prohibited  from 
passing  bankrupt  laws,  and  that  the  essential  principle  of  such 
laws  is  to  discharge  the  bankrupt  from  all  past  obligations;  that 
the  States  have  been  in  the  constant  practice  of  passing  insolvent 
laws,  such  as  that  of  New  York,  and  if  the  framers  of  the  con- 
stitution had  intended  to  deprive  them  of  this  power,  insolvent 
laws  would  have  been  mentioned  in  the  prohibition;  that  the  pre- 
vailing evil  of  the  times,  which  produced  this  clause  in  the  consti- 
tution, was  the  practice  of  emitting  paper  money,  of  making  prop- 
erty which  was  useless  to  the  creditor  a  discharge  of  his  debt,  and 
of  changing  the  time  of  payment  by  authorizing  distant  install- 
ments. Laws  of  this  description,  not  insolvent  laws,  constituted, 
it  is  said,  the  mischief  to  be  remedied;  and  laws  of  this  descrip- 
tion, not  insolvent  laws,  are  within  the  true  spirit  of  the  pro- 
hibition. 

The  constitution  does  not  grant  to  the  States  the  power  of  pass- 
ing bankrupt  laws,  or  any  other  power;  but  finds  them  in  posses- 
sion of  it,  and  may  either  prohibit  its  future  exercise  entirely,  or 
restrain  it  so  far  as  national  policy  may  require.  It  has  so  far 
restrained  it  as  to  prohibit  the  passage  of  any  law  impairing  the^ 


408  CASES    ON    CONSTITUTIONAL    LAW. 

obligation  of  contracts.  Although,  then,  the  States  may,  until 
that  power  shall  be  exercised  by  congress,  pass  laws  concerning 
bankrupts,  yet  they  cannot  constitutionally  introduce  into  such 
laws  a  clause  which  discharges  the  obligations  the  bankrupt  has 
entered  into.  It  is  not  admitted  that  without  this  principle,  an 
act  cannot  be  a  bankrupt  law;  and  if  it  were,  that  admission  would 
not  change  the  constitution,  nor  exempt  such  acts  from  its  pro- 
hibitions. 

The  argument  drawn  from  the  omission  in  the  constitution  to 
prohibit  the  States  from  passing  insolvent  laws,  admits  of  several 
satisfactory  answers.    It  was  not  necessary,  nor  would  it  have  been 
safe,  had  it  even  been  the  intention  of  the*  framers  of  the  consti- 
tution to  prohibit  the  passage  of  all  insolvent  laws,  to  enumerate 
particular  subjects  to  which  the  principle  they  intended  to  estab- 
lish should  apply.     The  principle  was  the  inviolability  of  con- 
tracts.   This  principle  was  to  be  protected  in  whatsoever  form  it 
might  be  assailed.     To  what  purpose  enumerate  the  particular 
modes  of  violation  which  should  be  forbidden,  when  it  was  in- 
tended to  forbid  all?    Had  an  enumeration  of  all  the  laws  which 
might  violate  contracts  been  attempted,  the  provision  must  have 
been  less  complete,  and  involved  in  more  perplexity  than  it  now  is. 
I  The  plain  and  simple  declaration,  that  no  State  shall  pass  any 
/law  impairing  the  obligation  of  contracts,  includes  insolvent  laws 
/  and  all  other  laws,  so  far  as  they  infringe  the  principle  the  con- 
'  vention  intended  to  hold  sacred,  and  no  further. 

But  a  still  more  satisfactory  answer  to  this  argument  is,  that 
the  convention  did  not  intend  to  prohibit  the  passage  of  all  in- 
solvent laws.  To  punish  honest  insolvency  by  imprisonment  for 
life,  and  to  make  this  a  constitutional  principle,  would  be  an 
excess  of  inhumanity  which  will  not  readily  be  imputed  to  the 
illustrious  patriots  who  framed  our  constitution,  nor  to  the  people 
who  adopted  it.  The  distinction  between  the  obligation  of  a 
contract,  and  the  remedy  given  by  the  legislature  to  enforce  that 
obligation,  has  been  taken  at  the  bar,  and  exists  in  the  nature  of 
things.  Without  impairing  the  obligation  of  the  contract,  the  rem- 
,  edy  may  certainly  be  modified  as  the  wisdom  of  the  nation  shall 
direct.  Confinement  of  the  debtor  may  be  a  punishment  for  not 
;  performing  his  contract,  or  may  be  allowed  as  a  means  of  inducing 
I  him  to  perform  it.  But  the  State  may  refuse  to  inflict  this  punish- 
ment, or  may  withhold  this  means,  and  leave  the  contract  in  full 
force.  Imprisonment  is  no  part  of  the  contract,  and  simply  to  re- 
lease the  prisoner  does  not  impair  its  obligation. 

The  argument  which  has  been  pressed  most  earnestly  at  the  bar. 


STURGES   V.    CROWN  INSHIELD.  409 

is,  that,  although  all  legislative  acts  which  discharge  the  obliga- 
tion of  a  contract  without  performance,  are  within  the  very  words 
of  the  constitution,  yet  an  insolvent  act,  containing  this  principle, 
is  not  within  its  spirit,  because  such  acts  have  been  passed  by 
colonial  and  state  legislatures  from  the  first  settlement  of  the  coun- 
try, and  because  we  know  from  the  history  of  the  times,  that  the 
mind  of  the  convention  was  directed  to  other  laws,  which  were 
fraudulent  in  their  character,  which  enabled  the  debtor  to  escape 
from  his  obligation,  and  yet  hold  his  property;  not  to  this,  which 
is  beneficial  in  its  operation. 

Before  discussing  this  argument,  it  may  not  be  improper  to 
premise  that,  although  the  spirit  of  an  instrument,  especially  of  a 
constitution,  is  to  be  respected  not  less  than  its  letter,  yet  the 
spirit  is  to  be  collected  chiefly  from  its  words.  It  would  be  dan- 
gerous in  the  extreme  to  infer  from  extrinsic  circumstances,  that 
a  case  for  which  the  words  of  an  instrument  expressly  provide, 
shall  be  exempted  ^rom  its  operation.  Where  words  conflict  with 
each  other,  where  the  different  clauses  of  an  instrument  bear  upon 
each  other,  and  would  be  inconsistent  unless  the  natural  and 
common  import  of  words  be  varied,  construction  becomes  neces- 
sary, and  a  departure  from  the  obvious  meaning  of  words  is  Justi- 
fiable. But  if,  in  any  case,  the  plain  meaning  of  a  provision,  not 
contradicted  by  any  other  provision  in  the  same  instrument,  is  to 
be  disregarded,  because  we  believe  the  framers  of  that  instrument 
could  not  intend  what  they  say,  it  must  be  one  in  which  the  ab- 
surdity and  injustice  of  applying  the  provision  to  the  case,  would 
be  so  monstrous  that  all  mankind  would,  without  hesitation,  unite 
in  rejecting  the  application. 

This  is  certainly  not  such  a  case.  It  is  said  the  colonial  and 
state  legislatures  have  been  in  the  habit  of  passing  laws  of  this 
description  for  more  than  a  century;  that  they  have  never  been 
the  subject  of  complaint,  and,  consequently,  could  not  be  within 
the  view  of  the  general  convention. 

The  fact  is  too  broadly  stated.  The  insolvent  laws  of  many> 
indeed,  of  by  far  the  greater  number  of  the  States,  do  not  contain 
this  principle.  They  discharge  the  person  of  the  debtor,  but 
leave  his  obligation  to  pay  in  full  force.  To  this  the  constitution 
is  not  opposed. 

But,  were  it  even  true  that  this  principle  had  been  introduced 
generally  into  those  laws,  it  would  not  justify  our  varying  the  con- 
struction of  the  section.  Every  State  in  the  Union,  both  while 
a  colony  and  after  becoming  independent,  had  been  in  the  prac- 
tice of  issuing  paper  money;  yet  this  practice  is,  in  terms,  prohib- 


410  CASES    ON    CONSTITUTIONAL    LAW. 

ited.  If  the  long  exercise  of  the  power  to  emit  bills  of  credit  did 
not  restrain  the  convention  from  prohibiting  its  future  exercise, 
neither  can  it  be  said  that  the  long  exercise  of  the  power  to  impair 
the  obligation  of  contracts,  should  prevent  a  similar  prohibition. 
It  is  not  admitted  that  the  prohibition  is  more  express  in  the  one 
case  than  in  the  other.  It  does  not,  indeed,  extend  to  insolvent 
■  laws  by  name^  because  it  is  not  a  law  by  name,  but  a  principle 
which  is  to  be  forbidden;  and  this  principle  is  described  in  as  ap- 
propriate terms  as  our  language  affords, 

iSTeither,  as  we  conceive,  will  any  admissible  rule  of  construc- 
tion justify  us  in  limiting  the  prohibition  under  consideration, 
to  the  particular  laws  which  have  been  described  at  the  bar,  and 
which  furnished  such  cause  for  general  alarm.  What  were  those 
laws? 

We  are  told  they  were  such  as  grew  out  of  the  general  distress 
following  the  war  in  which  our  independence  was  established.  To 
relieve  this  distress  paper  money  was  issued;  worthless  lands, 
and  other  property  of  no  use  to  the  creditor,  were  made  a  tender 
in  payment  of  debts;  and  the  time  of  payment,  stipulated  in 
the  contract,  was  extended  by  law.  These  were  the  peculiar  evils 
of  the  day.  So  much  mischief  was  done,  and  so  much  more  was 
apprehended,  that  general  distrust  prevailed,  and  all  confidence 
between  man  and  man  was  destroyed.  To  laws  of  this  description 
therefore,  it  is  said,  the  prohibition  to  pass  laws  impairing  the 
obligation  of  contracts  ought  to  be  confined. 

Let  this  argument  be  tried  by  the  words  of  the  section  under 
consideration.  Was  this  general  prohibition  intended  to  prevent 
paper  money*?  We  are  not  allowed  to  say  so,  because  it  is  expressly 
provided,  that  no  State  shall  "emit  bills  of  credit;"  neither  could 
these  words  be  intended  to  restrain  the  States  from  enabling 
debtors  to  discharge  their  debts  by  the  tender  of  property  of  no 
real  value  to  the  creditor,  because  for  that  subject  also  particular 
provision  is  made.  Nothing  but  gold  and  silver  coin  can  be  made 
a  tender  in  payment  of  debts. 

It  remains  to  inquire,  whether  the  prohibition  under  considera- 
tion could  be  intended  for  the  single  case  of  a  law  directing  that 
judgments  should  be  carried  into  execution  by  instalments? 

This  question  will  scarcely  admit  of  discussion.  If  this  was 
the  only  remaining  mischief  against  which  the  constitution  in- 
tended to  provide,  it  would  undoubtedly  have  been,  like  paper 
money  and  tender  laws,  expressly  forbidden.  At  any  rate,  terms 
more  directly  applicable  to  the  subject,  more  appropriately  ex- 
pressing the  intention  of  the  convention,  would  have  been  used. 


STURGES   V.    CROWNINSHIELD.  411 

It  seems  scarcely  possible  to  suppose  that  the  framers  of  the  con- 
stitution, if  intending  to  prohibit  only  laws  authorizing  the  pay- 
ment of  debts  by  instalments,  would  have  expressed  that  in|:en- 
tion  by  saying,  "no  State  shall  pass  any  law  impairing  the  obliga- 
tion of  contracts."  No  men  would  so  express  such  an  intention. 
Xo  men  would  use  terms  embracing  a  whole  class  of  laws,  for  the 
purpose  of  designating  a  single  individual  of  that  class.  No  court 
can  be  justified  in  restricting  such  comprehensive  words  to  a  par- 
ticular mischief  to  which  no  allusion  is  made. 

The  fair,  and  we  think,  the  necessary  construction  of  the  sen- 
tence, requires,  that  we  should  give  these  words  their  full  and 
obvious  meaning.  A  general  dissatisfaction  with  that  lax  system 
of  legislation  which  followed  the  war  of  our  Eevolution,  undoubt- 
edly directed  the  mind  of  the  convention  to  this  subject.  It  is 
probable  that  laws  such  as  those  which  have  been  stated  in  argu- 
ment, produced  the  loudest  complaints,  were  most  immediately 
felt.  The  attention  of  the  convention,  therefore,  was  particularly 
directed  to  paper  money,  and  to  acts  which  enabled  the  debtor  to 
discharge  his  debt  otherwise  than  was  stipulated  in  the  contract. 
Had  nothing  more  been  intended,  nothing  more  would  have  been 
expressed.  But,  in  the  opinion  of  the  convention,  much  more  re- 
mained to  be  done.  The  same  mischief  might  be  effected  by  other 
means.  To  restore  public  confidence  completely,  it  was  neces- 
sary not  only  to  prohibit  the  use  of  particular  means  by  which  it 
might  be  effected,  but  to  prohibit  the  use  of  any  means  by  which 
the  same  mischief  might  be  produced.  The  convention  appears 
to  have  intended  to  establish  a  great  principle,  that  contracts 
should  be  inviolable.  The  constitution,  therefore,  declares,  that 
no  State  shall  pass  "any  law  impairing  the  obligation  of  contracts." 

If,  as  we  think,  it  must  be  admitted  that  this  intention  might 
actuate  the  convention;  that  it  is  not  only  consistent  with,  but 
is  apparently  manifested  by,  all  that  part  of  the  section  which 
respects  this  subject;  that  the  words  used  are  well  adapted  to  the 
expression  of  it;  that  violence  would  be  done  to  their  plain  mean- 
ing by  understanding  them  in  a  more  limited  sense;  those  rules  of 
construction,  which  have  been  consecrated  by  the  wisdom  of  ages, 
compel  us  to  say,  that  these  words  prohibit  the  passage  of  any 
law  discharging  a  contract  without  performance. 

By  way  of  analogy,  the  statutes  of  limitations,  and  against 
usury,  have  been  referred  to  in  argument;  and  it  has  been  sup- 
posed that  the  construction  of  the  constitution,  which  this  opin- 
ion maintains,  would  apply  to  them  also,  and  must  therefore  be 
too  extensive  to  be  correct. 


412  CASES    ON    CONSTITUTIONAL    LAW. 

We  do  not  think  so.  Statutes  of  limitations  relate  to  the  reme- 
dies which  are  furnished  in  the  courts.  They  rather  establish, 
that  certain  circumstances  shall  amount  to  evidence  that  a  con- 
ftract  has  been  performed,  than  dispense  with  its  performance. 
(If,  in  a  State  where  six  years  may  be  pleaded  in  bar  to  an  action 
of  assumpsit,  a  law  should  pass  declaring  that  contracts  already  in 
existence,  not  barred  by  the  statute,  should  be  construed  to  be 
within  it,  there  could  be  little  doubt  of  its  unconstitutionality. 

So  with  respect  to  the  laws  against  usury.  If  the  law  be,  that 
no  person  shall  take  more  than  six  per  centum  per  annum  for 
the  use  of  money,  and  that,  if  more  be  reserved,  the  contract  shall 
be  void,  a  contract  made  thereafter  reserving  seven  per  cent., 
would  have  no  obligation  in  its  commencement;  but  if  a  law 
should  declare  that  contracts  already  entered  into,  and  reserving 
the  legal  interest,  should  be  usurious  and  void,  either  in  the  whole 
or  in  part,  it  would  impair  the  obligation  of  the  contract,  and 
would  be  clearly  unconstitutional. 

This  opinion  is  confined  to  the  case  actually  under  considera- 
tion. It  is  confined  to  a  case  in  which  a  creditor  sues  in  a  court, 
the  proceedings  of  which  the  legislature,  whose  act  is  pleaded, 
had  not  a  right  to  control,  and  to  a  case  where  the  creditor  had 
not  proceeded  to  execution  against  the  body  of  his  debtor,  within 
the  State  whose  law  attempts  to  absolve  a  confiu'cd  insolvent  debtor 
from  his  obligation.  When  such  a  case  arises  it  will  be  consid- 
ered. 

It  is  the  opinion  of  the  court,  that  the  act  oltlie._S.tate  of  New 
York,  which  is  pleaded  by  the  defendant  in  this  cause,  so  far  as 
it  attempts  to  discharge  this  defendant  from  the  debt  in  the 
declaration  mentioned,  is  contrary  to  the  constitution  of  the 
United  States,  and  that  the  plea  is  no  bar  to  the'  action 


THE  TEUSTEES  OF  DAETMOUTH  COLLEGE  v.  WOOD- 

WAED. 

4  Wheaton,  518.    Decided  1819. 

[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  as  fol- 
lows: 

This  is  an  action  of  trover,  brought  by  the  Trustees  of  Dart- 
mouth College,  against  William  H.  Woodward,  in  the  state  court 


DARTMOUTH    COLLEGE    v.    WOODWARD.  413 

of  New  Hampshire,  for  the  book  of  records,  corporate  seal,  and 
other  corporate  property,  to  which  the  plaintiffs  allege  themselves 
to  be  entitled. 

A  special  verdict,  after  setting  ont  the  rights  of  the  parties, 
finds  for  the  defendant,  if  certain  acts  of  the  legislature  of  New 
Hampshire,  passed  on  the  27th  of  June,  and  on  the  18th  of  De- 
cember, 1816,  be  valid,  and  binding  on  the  trustees  without  their 
assent,  and  not  repugnant  to  the  constitution  of  the  United  States; 
otherwise  it  finds  for  the  plaintiffs. 

Tlie  superior  court  of  judicature  of  New  Hampshire  rendered 
a  judgment  upon  this  verdict  for  the  defendant,  which  judgment 
has  been  brought  before  this  court  by  writ  of  error.  The  single 
question  now  to  be  considered  is,  do  the  acts  to  which  the  verdict 
refers  violate  the  constitution  of  the  United  States? 

This  ceurt  can  be  insensible  neither  to  the  magnitude  nor  to 
the  delicacy  of  this  question.  The  validity  of  a  legislative  act  is 
to  be  examined;  and  the  opinion  of  the  highest  law  tribunal  of 
a  State  is  to  be  revised;  an  opinion  which  carries  with  it  intrinsic 
evidence  of  the  diligence,  of  the  ability,  and  the  integrity  with 
which  it  was  formed.  On  more  than  one  occasion  this  court  has 
expressed  the  cautious  circumspection  with  which  it  approaches 
the  consideration  of  such  questions;  and  has  declared  that,  in  no 
doubtful  case,  would  it  pronounce  a  legislative  act  to  be  contrary 
to  the  constitution.  But  the  American  people  have  said,  in  the 
constitution  of  the  United  States,  that  "no  State  shall  pass  any 
bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts."  In  the  same  instrument  they  have  also  said, 
"that  the  judicial  power  shall  also  extend  to  all  cases  in  law 
and  equity  arising  under  the  constitution."  On  the  judges  of 
this  court,  then,  is  imposed  the  high  and  solemn  duty  of  protect- 
ing, from  even  legislative  violation,  those  contracts  which  the 
constitution  of  our  country  has  placed  beyond  legislative  control; 
and,  however  irksome  the  task  may  be,  this  is  a  duty  from  which 
we  dare  not  shrink. 

The  title  of  the  plaintiffs  originates  in  a  charter  dated  the  13th 
day  of  December,  in  the  year  1769,  incorporating  twelve  persons 
therein  mentioned,  by  the  name  of  "The  Trustees  of  Dartmouth 
College,"  granting  to  them  and  their  successors  the  usual  cor- 
porate privileges  and  powers,  and  authorizing  the  trustees,  who 
are  to  govern  the  college,  to  fill  up  all  vacancies  which  may  be 
created  in  their  own  body. 

The  defendant  claims  under  three  acts  of  the  legislature  of  New 
Hampshire,  the  most  material  of  which  was  passed  on  the  27th  of 


414  CASES    ON    CONSTITUTIONAL    LAW. 

June,  1816,  and  is  entitled  "An  act  to  amend  the  charter  and 
enlarge  and  improve  the  corporation  of  Dartmouth  College." 
Among  other  alterations  in  the  charter,  this  act  increases  the 
number  of  trustees  to  twenty-one,  gives  the  appointment  of  the 
additional  members  to  the  executive  of  the  State,  and  creates  a 
board  of  overseers,  with  power  to  inspect  and  control  the  most 
important  acts  of  the  trustees.  This  board  consists  of  twenty- 
five  persons.  The  president  of  the  senate,  the  speaker  of  the 
house  of  representatives  of  New  Hampshire,  and  the  governor 
and  lieutenant-governor  of  Vermont,  for  the  time  being,  are  to 
be  members  ex  officio.  The  board  is  to  be  completed  by  the  gov- 
ernor and  council  of  New  Hampshire,  who  are  also  empowered 
to  fill  all  vacancies  which  may  occur.  The  acts  of  the  18th  and 
26th  of  December  are  supplemental  to  that  of  the  27th  of  June, 
and  are  principally  intended  to  carry  that  act  into  effect. 

The  majority  of  the  trustees  of  the  college  have  refused  to 
accept  this  amended  charter,  and  have  brought  this  suit  for  the 
corporate  property,  which  is  in  possession  of  a  person  holding 
by  virtue  of  the  acts  which  have  been  stated. 

It  can  require  no  argument  to  prove  that  the  circumstances  of 
this  case  constitute  a  contract.  An  application  is  made  to  the 
crown  for  a  charter  to  incorporate  a  religious  and  literary  institu- 
tion. In  the  application  it  is  stated  that  large  contributions  have 
been  made  for  the  object,  which  will  be  conferred  on  the  cor- 
poration as  soon  as  it  shall  be  created.  The  charter  is  granted, 
and  on  its  faith  the  property  is  conveyed.  Surely  in  this  transac- 
tion every  ingredient  of  a  complete  and  legitimate  contract  is  to 
be  found. 

The  points  for  consideration  are, 

1.  Is  this  contract  protected  by  the  constitution  of  the  United 
States? 

2.  Is  it  impaired  by  the  acts  under  which  the  defendant  holds? 

1.  On  the  first  point  it  has  been  argued  that  the  word  "con- 
tract," in  its  broadest  sense,  would  comprehend  the  political  rela- 
tions between  the  government  and  its  citizens,  would  extend  to 
offices  held  within  a  State  for  state  purposes,  and  to  many  of 
those  laws  concerning  civil  institutions,  which  must  change  with 
circumstances,  and  be  modified  by  ordinary  legislation;  which 
deeply  concern  the  public,  and  which,  to  preserve  good  govern- 
ment, the  public  judgment  must  control.  That  even  marriage 
is  a  contract,  and  its  obligations  are  affected  by  the  laws  respect- 
ing divorces.  That  the  clause  in  the  constitution,  if  construed  in 
its  greatest  latitude,  would  prohibit  these  laws.     Taken  in  its 


DARTMOUTH    COLLEGE    v.    WOODWARD.  415 

broad,  unlimited  sense,  the  clause  would  be  an  unprofitable  and 
vexatious  interference  with  the  internal  concerns  of  a  State,  would 
unnecessarily  and  unwisely  embarrass  its  legislation,  and  render 
immutable  those  civil  institutions  which  are  established  for  pur- 
poses of  internal  government,  and  which,  to  subserve  those  pur- 
poses, ought  to  vary  with  varying  circumstances.  That  as  the 
framers  of  the  constitution  could  never  have  intended  to  insert 
in  that  instrument  a  provision  so  unnecessary,  so  mischievous, 
and  so  repugnant  to  its  general  spirit,  the  term  "contract"  must 
be  understood  in  a  more  limited  sense.  That  it  must  be  under- 
stood as  intended  to  guard  against  a  power  of  at  least  doubtful 
utility,  the  abuse  of  which  had  been  extensively  felt,  and  to  re- 
strain the  legislature  in  future  from  violating  the  right  to  prop- 
erty. That  anterior  to  the  formation  of  the  constitution,  a  course 
of  legislation  had  prevailed  in  many,  if  not  in  all,  of  the  States, 
which  weakened  the  confidence  of  man  in  man,  and  embarrassed 
all  transactions  between  individuals,  by  dispensing  with  a  faith- 
ful performance  of  engagements.  To  correct  this  mischief,  by 
restraining  the  power  which  produced  it,  the  State  legislatures 
were  forbidden  "to  pass  any  law  impairing  the  obligation  of  con- 
tracts," that  is,  of  contracts  respecting  property,  under  which 
some  individual  could  claim  a  right  to  something  beneficial  to 
himself;  and  that  since  the  clause  in  the  constitution  must  in 
construction  receive  some  limitation,  it  may  be  confined,  and  ought 
to  be  confined,  to  cases  of  this  description;  to  cases  within  the 
mischief  it  was  intended  to  remedy. 

The  general  correctness  of  these  observations  cannot  be  con- 
troverted. That  the  framers  of  the  constitution  did  not  intend 
to  restrain  the  States  in  the  regulation  of  their  civil  institutions, 
adopted  for  internal  government,  and  that  the  instrument  they 
have  given  us  is  not  to  be  so  construed,  may  be  admitted.  The 
provision  of  the  constitution  never  has  been  understood  to  em- 
brace other  contracts  than  those  which  respect  property  or  some 
object  of  value,  and  confer  rights  which  may  be  asserted  in  a 
court  of  justice.  It  has  never  been  understood  to  restrict  the  gen- 
eral right  of  the  legislature  to  legislate  on  the  subject  of  divorces. 
Those  acts  enable  some  tribunal,  not  to  impair  a  marriage  con- 
tract, but  to  liberate  one  of  the  parties  because  it  has  been  broken 
by  the  other.  When  any  State  legislature  shall  pass  an  act  an- 
nulling all  marriage  contracts,  or  allowing  either  party  to  annul 
it  without  the  consent  of  the  other,  it  will  be  time  enough  to 
^inquire  whether  such  an  act  be  constitutional. 

he  parties  in  this  case  difii'er  less  on  general  principles,  less 


416  CASES    ON    CONSTITUTIONAL    LAW. 

on  the  true  construction  of  the  constitution  in  the  abstract,  than 
on  the  application  of  those  principles  to  this  case,  and  on  the  true 
construction  of  the  charter  of  1769.  This  is  the  point  on  which 
'the  cause  essentially  depends.  If  the  act  of  incorporation  be  a 
grant  of  political  power,  if  it  creates  a  civil  institution  to  be  em- 
ployed in  the  administration  of  the  government,  or  if  the  funds 
of  the  college  be  public  property,  or  if  the  State  of  New  Hamp- 
shire, as  a  government,  be  alone  interested  in  its  transactions,  the 
subject  is  one  in  which  the  legislature  of  the  State  may  act 
according  to  its  own  judgment,  unrestrained  by  any  limitation 
of  its  power  imposed  by  the  constitution  of  the  United  States. 

But  if  this  be  a  private  eleemosynary  institution,  endowed  with 
a  capacity  to  take  property  for  objects  unconnected  with  govern- 
ment, whose  funds  are  bestowed  by  individuals  on  the  faith  of 
the  charter;  if  the  donors  have  stipulated  for  the  future  disposi- 
tion and  management  of  those  funds  in  the  manner  prescribed 
by  themselves;  there  may  be  more  difficulty  in  the  case,  although 
neither  the  persons  who  have  made  these  stipulations,  nor  those 
for  whose  benefit  they  were  made,  should  be  parties  to  the  cause. 
Those  who  are  no  longer  interested  in  the  property  may  yet  retain 
such  an  interest  in  the  preservation  of  their  own  arrangements 
as  to  have  a  right  to  insist  that  those  arrangements  shall  be  held 
sacred.  Or,  if  they  have  themselves  disappeared,  it  becomes  a 
subject  of  serious  and  anxious  inquiry  whether  those  whom  they 
have  legally  empowered  to  represent  them  forever  may  not  assert 
all  the  rights  which  they  possessed  while  in  being;  whether,  if 
they  be  without  personal  representatives  who  may  feel  injured 
by  a  violation  of  the  compact,  the  trustees  be  not  so  completely 
their  representatives  in  the  eye  of  the  law  as  to  stand  in  their 
place,  not  only  as  respects  the  government  of  the  college,  but 
also  as  respects  the  maintenance  of  the  college  charter. 

It  becomes  then  the  duty  of  the  court  most  seriously  to  ex- 
amine this  charter,  and  to  ascertain  its  true  character. 

From  the  instrument  itself  it  appears  that  about  the  year  1754 
the  Rev.  Eleazer  Wheelock  established  at  his  own  expense,  and 
on  his  own  estate,  a  charity  school  for  the  instruction  of  In- 
dians in  the  Christian  religion.  The  success  of  this  institution 
inspired  him  with  the  design  of  soliciting  contributions  in  Eng- 
land for  carryng  on  and  extending  his  undertaking.  In  this  pious 
work  he  employed  the  Rev.  Nathaniel  Whitaker,  who,  by  virtue 
of  a  power  of  attorney  from  Dr.  Wheelock,  appointed  the  Earl 
of  Dartmouth  and  others  trustees  of  the  money  which  had  been 
and  should  be   contributed;    which  appointment  Dr.  Wheelock 


DARTMOUTH    COLLEGE    v.    WOODWARD.  417 

confirmed  by  a  deed  of  trust  authorizing  the  trustees  to  fix  on  a 
site  for  the  college.  They  determined  to  establish  the  school  on 
Connecticut  Eiver,  in  the  western  part  of  New  Hampshire;  that 
situation  being  supposed  favorable  for  carrying  on  the  original 
design  among  the  Indians,  and  also  for  promoting  learning  among 
the  English,  and  the  proprietors  in  the  neighborhood  having  made 
large  offers  of  land  on  condition  that  the  college  should  there 
be  placed.  Dr.  Wheelock  then  applied  to  the  crown  for  an  act 
of  incorporation,  and  represented  the  expediency  of  appointing 
those  whom  he  had,  by  his  last  will,  named  as  trustees  in  Amer- 
ica, to  be  members  of  the  proposed  corporation,  "In  considera- 
tion of  the  premises,"  "for  the  education  and  instruction  of  the 
youth  of  the  Indian  tribes,"  &c.,  "and  also  of  English  youth  and 
any  others,"  the  charter  was  granted,  and  the  Trustees  of  Dart- 
mouth College  were  by  that  name  created  a  body  corporate,  with 
power,  for  the  use  of  the  said  college,  to  acquire  real  and  personal 
property,  and  to  pay  the  president,  tutors,  and  other  officers  of 
the  college  such  salaries  as  they  shall  allow. 

The  charter  proceeds  to  appoint  Eleazer  Wheelock,  "the  founder 
of  said  college,"  president  thereof,  with  power  by  his  last  will  to 
appoint  a  successor,  who  is  to  continue  in  office  until  disapproved 
by  the  trustees.  In  cases  of  vacancy,  the  trustees  may  appoint 
a  president,  and  in  case  of  the  ceasing  of  a  president,  the  senior 
professor  or  tutor,  being  one  of  the  trustees,  shall  exercise  the 
office  until  an  appointment  shall  be  made.  The  trustees  have 
power  to  appoint  and  displace  professors,  tutors,  and  other  offi- 
cers, and  to  supply  any  vacancies  which  may  be  created  in  their 
own  body  by  death,  resignation,  removal,  or  disability;  and  also 
to  make  orders,  ordinances,  and  laws  for  the  government  of  the 
college,  the  same  not  being  repugnant  to  the  laws  of  Great  Brit- 
ain or  of  New  Hampshire,  and  not  excluding  any  person  on  ac- 
count of  hi8  speculative  sentiments  in  religion,  or  his  being 
of  a  religious  profession  different  from  that  of  the  trustees. 

This  charter  was  accepted,  and  the  property,  both  real  and 
personal,  which  had  been  contributed  for  the  benefit  of  the  col- 
lege, was  conveyed  to  and  vested  in  the  corporate  body. 

From  this  brief  review  of  the  most  essential  parts  of  the  char- 
ter, it  is  apparent  that  the  funds  of  the  college  consisted  entirely 
of  private  donations.  It  is,  perhaps,  not  very  important  who  were 
the  donors.  The  probability  is  that  the  Earl  of  Dartmouth  and 
the  other  trustees  in  England  were,  in  fact,  the  largest  contrib- 
utors. Yet  the  legal  conclusion  from  the  facts  recited  in  the 
27 


418  CASES    ON    CONSTITUTIONAL    LAW. 

charter  would  probably  be,  that  Dr.  WTieelock  was  the  founder 
of  the  college. 

The  origin  of  the  institution  was,  undoubtedly,  the  Indian 
charity  school  established  by  Dr.  Wheelock  at  his  own  expense. 
It  was  at  his  instance,  and  to  enlarge  this  school,  that  contri- 
butions were  solicited  in  England.  The  person  soliciting  these 
contributions  was  his  agent;  and  the  trustees,  who  received  the 
money,  were  appointed  by  and  acted  under  his  authority.  It  is 
not  too  much  to  say  that  the  funds  were  obtained  by  him  in 
trust,  to  be  applied  by  him  to  the  purposes  of  his  enlarged  school. 
The  charter  of  incorporation  was  granted  at  his  instance.  The 
persons  named  by  him  in  his  last  will  as  the  trustees  of  his 
charity  school  compose  a  part  of  the  corporation,  and  he  is  de- 
clared to  be  the  founder  of  the  college  and  its  president  for  life. 
Were  the  inquiry  material,  we  should  feel  some  hesitation  in 
saying  that  Dr.  Wheelock  was  not,  in  law,  to  be  considered  as 
the  founder  (1  Bl.  Com.,  481)  of  this  institution,  and  as  pos- 
sessing all  the  rights  appertaining  to  that  character.  But  bo 
this  as  it  may,  Dartmouth  College  is  really  endowed  by  private 
individuals,  who  have  bestowed  their  funds  for  the  propagati(m 
of  the  Christian  religion  among  the  Indians,  and  for  the  promo- 
tion of  piety  and  learning  generally.  From  these  funds  the 
salaries  of  the  tutors  are  drawn,  and  these  salaries  lessen  the 
expense  of  education  to  the  students.  It  is  then  an  eleemosy- 
nary (1  Bl.  Com.,  471)  and,  as  far  as  respects  its  funds,  a  private 
corporation. 

Do  its  objects  stamp  on  it  a  different  character?  Are  the  trus- 
tees and  professors  public  officers,  invested  with  any  portion  of 
political  power,  partaking  in  any  degree  in  the  administration 
of  civil  government,  and  performing  duties  which  flow  from  the 
sovereign  authority? 

That  education  is  an  object  of  national  concern  and  a  proper 
subject  of  legislation,  all  admit.  That  there  may  be  an  institu- 
tion founded  by  government  and  placed  entirely  under  its  imme- 
diate control,  the  officers  of  which  would  be  public  officers,  amen- 
able exclusively  to  government,  none  will  deny.  But  is  Dart- 
mouth College  such  an  institution?  Is  education  altogether  in 
the  hands  of  government?  Does  every  teacher  of  youth  become 
a  public  officer,  and  do  donations  for  the  purpose  of  education 
necessarily  become  public  property,  so  far  that  the  will  of  the 
legislature,  not  the  will  of  the  donor,  becomes  the  law  of  the 
donation?  These  questions  are  of  serious  moment  to  society,  and 
xleserve  to  be  well  considered. 


DARTMOUTH    COLLEGE   v.    WOODWARD.  419 

Dr.  Wheelock,  as  the  keeper  of  his  charity  school,  instructing 
the  Indians  in  the  art  of  reading  and  in  our  holy  religion,  sus- 
taining them  at  his  own  expense  and  on  the  voluntary  contribu- 
tions of  the  charitable,  could  scarcely  be  considered  as  a  public 
officer,  exercising  any  portion  of  those  duties  which  belong  to 
government;  nor  could  the  legislature  have  supposed  that  his 
private  funds,  or  those  given  by  others,  were  subject  to  legisla- 
tive management  because  they  were  applied  to  the  purposes  of 
education.  When,  afterwards,  his  school  was  enlarged,  and  the 
liberal  contributions  made  in  England  and  in  America  enabled 
him  to  extend  his  cares  to  the  education  of  the  youth  of  his  own 
country,  no  change  was  wrought  in  his  own  character  or  in  the 
nature  of  his  duties.  Had  he  employed  assistant  tutors  with  the 
funds  contributed  by  others,  or  had  the  trustees  in  England 
established  a  school  with  Dr.  Wheelock  at  its  head,  and  paid 
salaries  to  him  and  his  assistants,  they  would  still  have  been  j)ri- 
vate  tutors;  and  the  fact  that  they  were  employed  in  the  educa- 
tion of  youth  could  not  have  converted  them  into  public  officers 
concerned  in  the  administration  of  public  duties,  or  have  given 
the  legislature  a  right  to  interfere  in  the  management  of  the 
fund.  The  trustees,  in  whose  care  that  fund  was  placed  by  the 
contributors,  would  have  been  permitted  to  execute  their  trust 
uncontrolled  by  legislative  authority. 

AVhence,  then,  can  be  derived  the  idea  that  Dartmouth  College 
has  become  a  public  institution,  and  its  trustees  public  officers, 
exercising  powers  conferred  by  the  public  for  public  objects?  Not 
from  the  source  whence  its  funds  were  drawn,  for  its  foundation 
is  purely  private  and  eleemosynary, — not  from  the  application  of 
those  funds;  for  money  may  be  given  for  education,  and  the 
persons  receiving  it  do  not,  by  being  employed  in  the  education 
of  youth,  become  members  of  the  civil  government.  Is  it  from 
the  act  of  incorporation?    Let  this  subject  be  considered. 

A  corporation  is  an  artificial  being,  invisible,  intangible,  and 
existing  only  in  contemplation  of  law.  Being  the  mere  creature 
of  law,  it  possesses  only  those  properties  which  the  charter  of  its 
creation  confers  upon  it,  either  expressly  or  as  incidental  to  its 
very  existence.  These  are  such  as  are  supposed  best  calculated 
to  effect  the  object  for  which  it  was  created.  Among  the  most 
important  are  immortality,  and,  if  the  expression  may  be  allowed, 
individuality;  properties,  by  which  a  perpetual  succession  of  many 
persons  are  considered  as  the  same,  and  may  act  as  a  single  in- 
dividual. They  enable  a  corporation  to  manage  its  own  affairs, 
and  to  hold  property  without  the  perplexing  intricacies,  the  haz- 


430  CASES    ON    CONSTITUTIONAL    LAW. 

ardous  and  endless  necessity,  of  perpetual  conveyances  for  the 
purpose  of  transmitting  it  from  hand  to  hand.  It  is  chiefly  for 
the  purpose  of  clothing  bodies  of  men  in  succession  with  these 
qualities  and  capacities  that  corporations  were  invented  and  are 
in  use.  By  these  means,  a  perpetual  succession  of  individuals 
are  capable  of  acting  for  the  promotion  of  the  particular  object, 
like  one  immortal  being.  But  this  being  does  not  share  in  the 
civil  government  of  the  country,  unless  that  be  the  purpose  f(U' 
which  it  was  created.  Its  immortality  no  more  confers  on  it  po- 
litical power  or  a  political  character  than  immortality  would  con- 
fer such  power  or  character  on  a  natural  person.  It  is  no  more 
a  State  instrument  than  a  natural  person  exercising  the  same 
powers  would  be.  If,  then,  a  natural  person,  employed  by  indi- 
viduals in  the  education  of  youth,  or  for  the  government  of  a 
seminary  in  which  youth  is  educated,  would  not  become  a  public 
officer,  or  be  considered  as  a  member  of  the  civil  government,  how 
is  it  that  this  artificial  being,  created  by  law  for  the  purpose  of 
being  employed  by  the  same  individuals  for  the  same  purposes, 
should  become  a  part  of  the  civil  government  of  the  country?  Is 
it  because  its  existence,  its  capacities,  its  powers,  are  given  by 
law?  Because  the  government  has  given  it  the  power  to  take  and 
to  hold  property  in  a  particular  form  and  for  particular  purposes, 
has  the  government  a  consequent  right  substantially  to  change 
that  form,  or  to  vary  the  purposes  to  which  the  property  is  to  be 
applied?  This  principle  has  never  been  asserted  or  recognized, 
and  is  supported  by  no  authority.  Can  it  derive  aid  from  reason? 
The  objects  for  which  a  corporation  is  created  are  universally 
such  as  the  government  wishes  to  promote.  They  are  deemed 
beneficial  to  the  country;  and  this  benefit  constitutes  the  con- 
sideration, and,  in  most  cases,  the  sole  consideration  of  the  grant. 
In  most  eleemosynary  institutions,  the  object  would  be  difficult, 
perhaps  unattainable,  without  the  aid  of  a  charter  of  incorpora- 
tion. Charitable  or  public-spirited  individuals,  desirous  of  mak- 
ing permanent  appropriations  for  charitable  or  other  useful  pur- 
poses, find  it  impossible  to  effect  their  design  securely  and  cer- 
tainly without  an  incorporating  act.  They  apply  to  the  govern- 
ment, state  their  beneficent  object,  and  offer  to  advance  the 
money  necessary  for  its  accomplishment,  provided  the  govern- 
ment will  confer  on  the  instrument  which  is  to  execute  their  de- 
signs the  capacity  to  execute  them.  The  proposition  is  considered 
and  approved.  The  benefit  to  the  public  is  considered  as  an  ample 
compensation  for  the  faculty  it  confers,  and  the  corporation  is 
created.     If  the  advantages  to  the  public  constitute  a  full  com- 


DARTMOUTH    COLLEGE   v.    WOODWARD.  421 

pensation  for  the  faculty  it  gi\e%  there  can  be  no  reason  for  exact- 
ing a  further  compensation,  by  claiming  a  right  to  exercise  over 
this  artificial  being  a  power  which  changes  its  nature,  and  touches 
the  fund  for  the  security  and  application  of  which  it  was  created. 
There  can  be  no  reason  for  implying  in  a  charter,  given  for  a  val- 
uable consideration,  a  power  which  is  not  only  not  expressed,  but 
is  in  direct  contradiction  to  its  express  stipulations. 

From  the  fact,  then,  that  a  charter  of  incorporation  has  been 
granted,  nothing  can  be  inferred  which  changes  the  character  of 
the  institution,  or  transfers  to  the  government  any  new  power 
over  it.  The  character  of  civil  institutions  does  not  grow  out 
of  their  incorporation,  but  out  of  the  manner  in  which  they  are 
formed,  and  the  objects  for  which  they  are  created.  The  right  to 
change  them  is  not  founded  on  their  being  incorporated,  but  on 
their  being  the  instruments  of  government,  created  for  its  pur- 
pose. The  same  institutions,  created  for  the  same  objects,  though 
not  incorporated,  would  be  public  institutions,  and,  of  course, 
be  controllable  by  the  legislature.  The  incorporating  act  neither 
gives  nor  prevents  this  control.  Neither,  in  reason,  can  the  in- 
corporating act  change  the  character  of  a  private  eleemosynary 
institution. 

We  are  next  led  to  the  inquiry,  for  whose  benefit  the  property 
^given  to  Dartmouth  College  was  secured?  The  counsel  for  the 
defendant  have  insisted  that  the  beneficial  interest  is  in  the  people 
of  New  Hampshire.  The  charter,  after  reciting  the  preliminary 
measures  which  had  been  taken,  and  the  application  for  an  act 
of  incorporation,  proceeds  thus:  "Know  ye,  therefore,  that  we, 
considering  the  premises,  and  being  willing  to  encourage  the 
laudable  and  charitable  design  of  spreading  Christian  knowledge 
among  the  savages  of  our  American  wilderness,  and  also  that  the 
best  means  of  education  be  established,  in  our  province  of  New 
Hampshire,  for  the  benefit  of  said  province,  do,  of  our  special 
grace,"  etc.  Do  these  expressions  bestow  on  New  Hampshire 
any  exclusive  right  to  the  property  of  the  college,  any  exclusive 
interest  in  the  labors  of  the  professors?  Or  do  they  merely  indi- 
cate a  willingness  that  New  Hampshire  should  enjoy  those  ad- 
vantages which  result  to  all  from  the  establishment  of  a  seminary 
of  learning  in  the  neighborhood?  On  this  point  we  think  it 
impossible  to  entertain  a  serious  doubt.  The  words  themselves, 
unexplained  by  the  context,  indicate  that  the  benefit  intended 
for  the  province"  is  that  which  is  derived  from  "establishing  the 
best  means  of  education  therein;"  that  is,  from  establishing  in 
the  province  Dartmouth  College  as  constituted  by  the  charter. 


422  CASES    ON    CONSTITUTIONAL    LAW. 

But  if  these  words,  considered  alone,  could  admit  of  doubt,  that 
doubt  is  completely  removed  by  an  inspection  of  the  entire  in- 
strument. 

The  particular  interests  of  New  Hampshire  never  entered  into 
the  mind  of  the  donors,  never  constituted  a  motive  for  their  dona- 
tion. The  propagation  of  the  Christian  religion  among  the  sav- 
ages, and  the  dissemination  of  useful  knowledge  among  the  youth 
of  the  country,  were  the  avowed  and  the  sole  objects  of  their 
contributions.  In  these  New  Hampshire  would  participate;  but 
nothing  particular  or  exclusive  was  intended  for  her.  Even  the 
site  of  the  college  was  selected,  not  for  the  sake  of  New  Hamp- 
shire, but  because  it  was  "most  subservient  to  the  great  ends  in 
view,"  and  because  liberal  donations  of  land  were  offered  by  the 
proprietors  on  condition  that  the  institution  should  be  there  estab- 
lished. The  real  advantages  from  the  location  of  the  college  are, 
perhaps,  not  less  considerable  to  those  on  the  west  than  to  those 
on  the  east  side  of  Connecticut  River.  The  clause  which  con- 
stitutes the  incorporation,  and  expresses  the  objects  for  which  it 
was  made,  declares  those  objects  to  be  the  instruction  of  the 
Indians,  "and  also  of  English  youth  and  any  others."  So  that 
the  objects  of  the  contributors  and  the  incorporating  act  were 
the  same, — the  promotion  of  Christianity  and  of  education  gener- 
ally, not  the  interests  of  New  Hampshire  particularly. 

From  this  review  of  the  charter,  it  appears  that  Dartmouth 
College  is  an  eleemosynary  institution,  incorporated  for  the  pur- 
pose of  perpetuating  the  application  of  the  bounty  of  the  donors 
to  the  specified  objects  of  that  bounty;  that  its  trustees  or  gov- 
ernors were  originally  named  by  the  founder,  and  invested  with 
the  power  of  perpetuating  themselves;  that  they  are  not  public 
officers,  nor  is  it  a  civil  institution,  participating  in  the  admin- 
istration of  government;  but  a  charity  school,  or  a  seminary  of 
education,  incorporated  for  the  preservation  of  its  property,  and 
the  perpetual  application  of  that  property  to  the  objects  of  its 
creation. 

Yet  a  question  remains  to  be  considered  of  more  real  difficulty, 
on  which  more  doubt  has  been  entertained  than  on  all  that  have 
been  discussed.  The  founders  of  the  college,  at  least  those  whose 
contributions  were  in  money,  have  parted  with  the  property  be- 
stowed upon  it,  and  their  representatives  have  no  interest  in  that 
property.  The  donors  of  land  are  equally  without  interest  so 
long  as  the  corporation  shall  exist.  Could  they  be  found,  they 
are  unaffected  by  any  alteration  in  its  constitution,  and  probably 
regardless  of  its  form  or  even  of  its  existence.    The  students  are 


DARTMOUTH    COLLEGE    v.    WOQDWARD.  423 

fluctuating,  and  no  individual  among  our  youth  has  a  vested  in- 
terest in  the  institution  which  can  be  asserted  in  a  court  of  jus- 
tice. Neither  the  founders  of  the  college,  nor  the  youth  for 
whose  benefit  it  was  founded,  complain  of  the  alteration  made  in 
its  chaiier,  or  think  themselves  injured  by  it.  The  trustees  alone 
complain,  and  the  trustees  have  no  beneficial  interest  to  be  pro- 
tected. Can  this  be  such  a  contract  as  the  constitution  intended 
to  withdraw  from  the  power  of  State  legislation.?  Contracts,  the 
parties  to  which  have  a  vested  beneficial  interest,  and  those  only, 
it  has  been  said,  are  the  objects  about  which  the  constitution  is 
solicitous,  and  to  which  its  protection  is  extended. 

The  court  has  bestowed  on  this  argument  the  most  deliberate 
consideration,  and  the  result  will  be  stated.  Dr.  Wheelock,  act- 
ing for  himself  and  for  those  who,  at  his  solicitation,  had  made 
contributions  to  his  school,  applied  for  this  charter,  as  the  instru- 
ment which  should  enable  him  and  them  to  perpetuate  their 
beneficent  intention.  It  was  granted.  An  artificial,  immortal 
being  was  created  by  the  crown,  capable  of  receiving  and  distrib- 
uting forever,  according  to  the  will  of  the  donors,  the  donations 
which  should  be  made  to  it.  On  this  being,  the  contributions 
which  had  been  collected  were  immediately  bestowed.  These  gifts 
were  made,  not  indeed  to  make  a  profit  for  the  donors  or  their 
posterity,  but  for  something,  in  their  opinion,  of  inestimable 
value;  for  something  which  they  deemed  a  full  equivalent  for  the 
money  with  which  it  was  purchased.  The  consideration  for  which 
they  stipulated,  is  the  perpetual  application  of  the  fund  to  its 
object,  in  the  mode  prescribed  by  themselves.  Their  descendants 
may  take  no  interest  in  the  preservation  of  this  consideration. 
But  in  this  respect  their  descendants  are  not  their  representa- 
tives. They  are  represented  by  the  corporation.  The  corpora- 
tion is  the  assignee  of  their  rights,  stands  in  their  place,  and  dis- 
tributes their  bounty,  as  they  would  themselves  have  distributed 
it  had  they  been  immortal.  So  with  respect  to  the  students  who 
are  to  derive  learning  from  this  source.  The  corporation  is  a 
trustee  for  them  also.  Their  potential  rights,  which,  taken  dis- 
tributively,  are  imperceptible,  amount  collectively  to  a  most  im- 
portant interest.  These  are,  in  the  aggregate,  to  be  exercised,  as- 
serted, and  protected  by  the  corporation.  They  were  as  completely 
out  of  the  donors,  at  the  instant  of  their  being  vested  in  the 
corporation,  .and  as  incapable  of  being  asserted  by  the  students,  as 
at  present. 

According  to  the  theory  of  the  British  constitution,  their  par- 
liament is  omnipotent.     To  annul  corporate  rights  might  give  a 


424  CASES    ON    CONSTITUTIONAL    LAW. 

shock  to  public  opinion,  which  that  government  has  chosen  to 
avoid;  but  its  power  is  not  questioned.  Had  parliament,  imme- 
diately after  the  emanation  of  this  charter  and  the  execution 
>f  those  conveyances  which  followed  it,  annulled  the  instrument, 
so  that  the  living  donors  would  have  witnessed  the  disappoint- 
ment of  their  hopes,  the  perfidy  of  the  transaction  would  have 
been  universally  acknowleged.  Yet  then,  as  now,  the  donors  would 
have  had  no  interest  in  the  property;  then,  as  now,  those  who 
might  be  students  would  have  had  no  rights  to  be  violated;  then, 
as  now,  it  might  be  said  that  the  trustees,  in  whom  the  rights 
of  all  were  combined,  possessed  no  private,  individual,  beneficial 
interest  in  the  property  confided  to  their  protection.  Yet  the 
contract  would  at  that  time  have  been  deemed  sacred  by  all.  What 
has  since  occurred  to  strip  it  of  its  inviolability?  Circumstances 
have  not  changed  it.  In  reason,  in  justice,  and  in  law,  it  is 
now  what  it  was  in  1769. 

This  is  plainly  a  contract  to  which  the  donors,  the  trustees,  and 
the  crown  (to  whose  rights  and  obligations  New  Hampshire  suc- 
ceeds) were  the  original  parties.  It  is  a  contract  made  on  a  val- 
uable consideration.  It  is  a  contract  for  the  security  and  disposi- 
tion of  property.  It  is  a  contract  on  the  faith  of  which  real  and 
personal  estate  has  been  conveyed  to  the  corporation.  It  is  then 
a  contract  within  the  letter  of  the  constitution,  and  within  its 
spirit  also,  unless  the  fact  that  the  property  is  invested  by  the 
donors  in  trustees  for  the  promotion  of  religion  and  education, 
for  the  benefit  of  persons  who  are  perpetually  changing,  though 
the  objects  remain  the  same,  shall  create  a  particular  exception, 
taking  this  case  out  of  the  prohibition  contained  in  the  consti- 
tution. 

It  is  more  than  possible  that  the  preservation  of  rights  of  this 
description  was  not  particularly  in  the  view  of  the  framers  of 
the  constitution  when  the  clause  under  consideration  was  intro- 
duced into  that  instrument.  It  is  probable  that  interferences  of 
more  frequent  recurrence,  to  which  the  temptation  was  stronger 
and  of  which  the  mischief  was  more  extensive,  constituted  the 
great  motive  for  imposing  this  restriction  on  the  State  legisla- 
tures. But  although  a  particular  and  a  rare  case  may  not  in  itself 
be  of  sufficient  magnitude  to  induce  a  rule,  yet  it  must  be  governed 
by  the  rule,  when  established,  unless  some  plain  and  strong  reason 
for  excluding  it  can  be  given.  It  is  not  enough  to  gay  that  this 
particular  case  was  not  in  the  mind  of  the  convention  when  the 
article  was  framed,  nor  of  the  American  people  when  it  was 
adopted.    It  is  necessary  to  go  farther,  and  to  say  that,  had  this 


DARTMOUTH    COLLEGE   v.    WOODWARD.  425 

particular  case  been  suggested,  the  language  would  have  been  so 
varied  as  to  exclude  it,  or  it  would  have  been  made  a  special 
exception.  The  case,  being  within  the  words  of  the  rule,  must 
be  within  its  operation  likewise,  unless  there  be  something  in  the 
literal  construction  so  obviously  absurd,  or  mischievous,  or  repug- 
nant to  the  general  spirit  of  the  instrument  as  to  justify  those 
who  expound  the  constitution  in  making  it  an  exception. 

On  what  safe  and  intelligible  ground  can  this  exception  stand? 
There  is  no  expression  in  the  constitution,  no  sentiment  delivered 
by  its  contemporaneous  expounders,  which  would  justify  us  in 
making  it.  In  the  absence  of  all  authority  of  this  kind,  is  there, 
in  the  nature  and  reason  of  the  case  itself,  that  which  would  sus- 
tain a  construction  of  the  constitution  not  warranted  by  its  words? 
Are  contracts  of  this  description  of  a  character  to  excite  so  little 
interest  that  we  must  exclude  them  from  the  provisions  of  the 
constitution,  as  being  unworthy  of  the  attention  of  those  who 
framed  the  instrument?  Or  does  public  policy  so  imperiously  de- 
mand their  remaining  exposed  to  legislative  alteration  as  to  com- 
pel us,  or  rather  permit  us  to  say,  that  these  words,  which  were 
introduced  to  give  stability  to  contracts,  and  which  in  their  plain 
import  comprehend  this  contract,  must  yet  be  so  construed  as 
to  exclude  it? 

Almost  all  eleemosynary  corporations,  those  which  are  created 
for  the  promotion  of  religion,  of  charity,  or  of  education,  are  of  the 
same  character.  The  law  of  this  case  is  the  law  of  all.  In  every  lit- 
erary or  charitable  institution,  unless  the  objects  of  the  bounty  be 
themselves  incorporated,  the  whole  legal  interest  is  in  trustees,  and 
can  be  asserted  only  by  them.  The  donors,  or  claimants  of  the 
bounty,  if  they  can  appear  in  court  at  all,  can  appear  only  to 
complain  of  the  trustees.  In  all  other  situations,  they  are  identi- 
fied with,  and  personated  by,  the  trustees,  and  their  rights  are  to 
be  defended  and  maintained  by  them.  Eeligion,  charity,  and  edu- 
cation are,  in  the  law  of  England,  legatees  or  donees,  capable  of 
receiving  bequests  or  donations  in  this  form.  They  appear  in 
court,  and  claim  or  defend  by  the  corporation.  Are  they  of  so 
little  estimation  in  the  United  States  that  contracts  for  their  bene- 
fit must  be  excluded  from  the  protection  of  words  which  in  their 
natural  import  include  them?  Or  do  such  contracts  so  necessarily 
require  new  modelling  by  the  authority  of  the  legislature  that  the 
ordinary  rules  of  construction  must  be  disregarded  in  order  to 
leave  them  exposed  to  legislative  alteration? 

All  feel  that  these  objects  are  not  deemed  unimportant  in  the 
United  States.     The  interest  which  this  case  has  excited  proves 


426  CASES    ON    CONSTITUTIONAL    LAW. 

that  they  are  not.  The  framers  of  the  constitution  did  not  deem 
them  unworthy  of  its  care  and  protection.  They  have,  though 
in  a  different  mode,  manifested  their  respect  for  science  by  re- 
serving to  the  government  of  the  Union  the  power  *'to  promote 
the  progress  of  science  and  useful  arts,  by  securing  for  limited 
times,  to  authors  and  inventors,  the  exclusive  right  to  their  respect- 
live  writings  and  discoveries."  They  have  so  far  withdrawn  science 
and  the  useful  arts  from  the  action  of  the  State  governments. 
Why,  then,  should  they  be  supposed  so  regardless  of  contracts 
made  for  the  advancement  of  literature  as  to  intend  to  exclude 
them  from  provisions  made  for  the  security  of  ordinary  contracts 
/  between  man  and  man?  Xo  reason  for  making  this  supposition 
I  is  perceived. 

i^ — If  the  insignificance  of  the  object  does  not  require  that  we 
should  exclude  contracts  respecting  it  from  the  protection  of  the 
constitution;  neither,  as  we  conceive,  is  the  policy  of  leaving 
them  subject  to  legislative  alteration  so  apparent  as  to  require  a 
forced  construction  of  that  instrument  in  order  to  effect  it.  These 
eleemosynary  institutions  do  not  fill  the  place  which  would  other- 
wise be  occupied  by  government,  but  that  which  would  otherwise 
remain  vacant.  They  are  complete  acquisitions  to  literature.  They 
are  donations  to  education;  donations  which  any  government  must 
be  disposed  rather  to  encourage  than  to  discountenance.  It  re- 
quires no  very  critical  examination  of  the  human  mind  to  enable 
us  to  determine  that  one  great  inducement  to  these  gifts  is  the 
conviction  felt  by  the  giver  that  the  disposition  he  makes  of  them 
is  immutable.  It  is  probable  that  no  man  ever  was,  and  that 
no  man  ever  will  be,  the  founder  of  a  college,  believing  at  the  time 
that  an  act  of  incorporation  constitutes  no  security  for  the  insti- 

Ctution;  believing  that  it  is  immediately  to  be  deemed  a  public 
institution,  whose  funds  are  to  be  governed  and  applied,  not  by 
the  will  of  the  donor,  but  by  the  will  of  the  legislature.  All  such 
gifts  are  made  in  the  pleasing,  perhaps  delusive,  hope  that  the 
charity  will  flow  forever  in  the  channel  which  the  givers  have 
marked  out  for  it.  If  every  man  finds  in  his  own  bosom  strong 
evidence  of  the  universality  of  this  sentiment,  there  can  be  but 
little  reason  to  imagine  that  the  framers  of  our  constitution  were 
strangers  to  it;  and  that,  feeling  the  necessity  and  policy  of  giving 
permanence  and  security  to  contracts,  of  withdrawing  them  from 
the  influence  of  legislative  bodies,  whose  fluctuating  policy  and 
repeated  interferences  produced  the  most  perplexing  and  inju- 
rious embarrassments,  they  still  deemed  it  necessary  to  leave  these 
contracts  subject  to  those  interferences.     The  motives  for  such 


DARTMOUTH    COLLEGE    v.    WOODWARD.  427 

an  exception  must  be  very  powerful  to  justify  the  construction 
which  makes  it. 

The  motives  suggested  at  the  bar  grow  out  of  the  original  ap- 
pointment of  the  trustees,  which  is  supposed  to  have  been  in  a 
spirit  hostile  to  the  genius  of  our  government,  and  the  presump- 
tion that,  if  allowed  to  continue  themselves,  they  now  are,  and 
must  remain  forever,  what  they  originally  were.  Hence  is  inferred 
the  necessity  of  applying  to  this  corporation,  and  to  other  similar 
corporations,  the  correcting  and  improving  hand  of  the  legisla- 
ture. 

It  has  been  urged  repeatedly,  and  certainly  with  a  degree  of 
earnestness  which  attracted  attention,  that  the  trustees,  deriving 
their  power  from  a  regal  source,  must  necessarily  partake  of  the 
spirit  of  their  origin;  and  that  their  first  principles,  unimproved 
by  that  resplendent  light  which  has  been  shed  around  them,  must 
continue  to  govern  the  college,  and  to  guide  the  students.  Before 
we  inquire  into  the  influence  which  this  argument  ought  to  have 
on  the  constitutional  question,  it  may  not  be  amiss  to  examine 
the  fact  on  which  it  rests.  The  first  trustees  were  undoubtedly 
named  in  the  charter  by  the  crown,  but  at  whose  suggestion  were 
they  named?  By  whom  were  they  selected?  The  charter  informs 
us.  Dr.  Wheelock  had  represented,  "that,  for  many  weighty  rea- 
sons, it  would  be  expedient  that  the  gentlemen  whom  he  had  al- 
ready nominated  in  his  last  will  to  be  trustees  in  America,  should 
be  of  the  corporation  now  proposed."  When,  afterwards,  the 
trustees  are  named  in  the  charter,  can  it  be  doubted  that  the  per- 
sons mentioned  by  Dr.  Wheelock  in  his  will  were  appointed?  Some 
were  probably  added  by  the  crown,  with  the  approbation  of  Dr. 
Wheelock.  Among  these  is  the  doctor  himself.  If  any  others 
were  appointed  at  the  instance  of  the  crown,  they  are  the  governor, 
three  members  of  the  council,  and  the  speaker  of  the  house  of 
representatives  of  the  colony  of  New  Hampshire.  The  stations 
filled  by  these  persons  ought  to  rescue  them  from  any  other  im- 
putation than  too  great  a  dependence  on  the  crown.  If  in  the 
Revolution  that  followed,  they  acted  under  the  influence  of  this 
sentiment,  they  must  have  ceased  to  be  trustees;  if  they  took 
part  with  their  countrymen,  the  imputation  which  suspicion  might 
excite  Avould  no  longer  attach  to  them.  The  original  trustees, 
then,  or  most  of  them,  were  named  by  Dr.  Wheelock,  and  those 
who  were  added  to  his  nomination,  most  probably  with  his  appro- 
bation, were  among  the  most  eminent  and  respectable  individuals 
in  New  Hampshire. 

The  only  evidence  which  we  possess  of  the  character  of  Dr. 


428  CASES    ON    CONSTITUTIONAL    LAW. 

f 

WTieelock  is  furnished  by  this  charter.  The  judicious  means  em- 
ployed for  the  accomplishment  of  his  object,  and  the  success  which 
attended  his  endeavors,  would  lead  to  the  opinion  that  he  united 
a  sound  understanding  to  that  humanity  and  benevolence  which 
suggested  his  undertaking.  It  surely  cannot  be  assumed  that  his 
trustees  were  selected  without  judgment.  With  as  little  probabil- 
ity can  it  be  assumed  that,  while  the  light  of  science  and  of  lib- 
eral principles  pervades  the  whole  community,  these  originally 
benighted  trustees  remain  in  utter  darkness,  incapable  of  partici- 
pating in  the  general  improvement;  that,  while  the  human  race 
is  rapidly  advancing,  they  are  stationary.  Reasoning  a  priori,  we 
should  believe  that  learned  and  intelligent  men,  selected  by  its 
patrons  for  the  government  of  a  literary,  institution,  would  select 
learned  and  intelligent  men  for  their  successors,  men  as  well  fitted 
for  the  government  of  a  college  as  those  who  might  be  chosen  by 
other  means.  Should  this  reasoning  ever  prove  erroneous  in  a 
particular  case,  public  opinion,  as  has  been  stated  at  the  bar, 
would  correct  the  institution.  The  mere  possibility  of  the  contrary 
would  not  justify  a  construction  of  the  constitution  which  should 
exclude  these  contracts  from  the  protection  of  a  provision  whose 
terms  comprehend  them. 

The  opinion  of  the  court,  after  mature  deliberation  is,  that  this 
is  a  contract,  the  obligation  of  which  cannot  be  impaired  without 
violating  the  constitution  of  the  United  States.  This  opinion  ap- 
pears to  us  to  be  equally  supported  by  reason  and  by  the  former 
decisions  of  this  court. 

2.  We  next  proceed  to  the  inquiry  whether  its  obligation  has 
been  impaired  by  those  acts  of  the  legislature  of  New  Hampshire 
to  which  the  special  verdict  refers. 

From  the  review  of  this  charter  which  has  been  taken  it  appears 
that  the  whole  power  of  governing  the  college,  of  appointing  and  re- 
moving tutors,  of  fixing  their  salaries,  of  directing  the  course  of 
study  to  be  pursued  by  the  students,  and  of  filling  up  vacancies  cre- 
ated in  their  own  body,  was  vested  in  the  trustees.  On  the  part 
of  the  crown  it  was  expressly  stipulated  that  this  corporation, 
thus  constituted,  should  continue  forever;  and  that  the  number 
of  trustees  should  forever  consist  of  twelve,  and  no  more.  By 
this  contract  the  crown  M-as  bound,  and  could  have  made  no  vio- 
lent alteration  in  its  essential  terms  without  impairing  its  obliga- 
tion. 

By  the  Eevolution  the  duties  as  well  as  the  powers  of  govern- 
ment devolved  on  the  people  of  New  Hampshire.  It  is  admitted 
that  among  the  latter  was  comprehended  the  transcendent  power 


DARTMOUTH    COLLEGE    v.    WOODWARD.  429 

of  parliament,  as  well  as  that  of  the  executive  department.  It  is 
too  clear  to  require  the  support  of  argument  that  all  contracts 
and  rights  respecting  property  remained  unchanged  by  the  Revo- 
lution. The  obligations,  then,  which  were  created  by  the  char- 
ter to  Dartmouth  College  were  the  same  in  the  new  that  they  had 
been  in  the  old  government.  The  power  of  the  government  was 
also  the  same.  A  repeal  of  this  charter  at  any  time  prior  to  the 
adoption  of  the  present  constitution  of  the  United  States  would 
have  been  an  extraordinary  and  unprecedented  act  of  power,  but 
one  which  could  have  been  contested  only  by  the  restrictions  upon 
the  legislature  to  be  found  in  the  constitution  of  the  State,  But 
the  constitution  of  the  United  States  has  imposed  this  addi- 
tional limitation,  that  the  legislature  of  a  State  shall  pass  no  act 
"impairing  the  obligation  of  contracts."  , 

It  has  been  already  stated  that  the  act  "to  amend  the  charter 
and  enlarge  and  improve  the  corporation  of  Dartmouth  College" 
increases  the  number  of  trustees  to  twenty-one,  gives  the  appoint- 
ment of  the  additional  members  to  the  executive  of  the  State,  and 
creates  a  board  of  overseers,  to  consist  of  twenty-five  persons,  of 
whom  twenty-one  are  also  appointed  by  the  executive  of  New 
Hampshire,  who  have  power  to  inspect  and  control  the  most  im- 
j)ortant  acts  of  the  trustees. 

On  the  effect  of  this  law  two  opinions  cannot  be  entertained. 
Between  acting  directly  and  acting  through  the  agency  of  trus- 
tees and  overseers  no  essential  difference  is  perceived.  The  whole 
power  of  governing  the  college  is  transformed  from  trustees  ap- 
pointed according  to  the  will  of  the  founder,  expressed  in  the 
charter,  to  the  executive  of  New  Hampshire.  The  management 
and  application  of  the  funds  of  this  eleemosynary  institution,  which 
are  placed  by  the  donors  in  the  hands  of  trustees  named  in  the 
charter,  and  empowered  to  perpetuate  themselves,  are  placed  by 
this  act  under  the  control  of  the  government  of  the  State.  The 
will  of  the  State  is  substituted  for  the  will  of  the  donors  in  every 
essential  operation  of  the  college.  This  is  not  an  immaterial 
change.  The  founders  of  the  college  contracted,  not  merely  for 
the  perpetual  application  of  the  funds  which  they  gave  to  the 
objects  for  which  those  funds  were  given;  they  contracted  also  to 
secure  that  application  by  the  constitution  of  the  corporation. 
They  contracted  for  a  system  which  should,  as  far  as  human  fore- 
sight can  provide,  retain  forever  the  government  of  the  literary 
institution  they  had  formed,  in  the  hands  of  persons  approved 
by  themselves.  This  system  is  totally  changed.  The  charter  of 
1769  exists  no  longer.     It  is  reorganized;  and  reorganized  in  such 


430  CASES    ON    CONSTITUTIONAL    LAW. 

a  manner  as  to  convert  a  literary  institution,  molded  according  to 
the  will  of  its  founders  and  placed  under  the  control  of  private 
literary  men,  into  a  machine  entirely  subservient  to  the  will  of 
government.  This  may  be  for  the  advantage  of  this  college  in 
particular,  and  may  be  for  the  advantage  of  literature  in  general; 
but  it  is  not  according  to  the  will  of  the  donors,  and  is  subver- 
sive of  that  contract  on  the  faith  of  which  their  property  was 
given. 

In  the  view  which  has  been  taken  of  this  interesting  case,  the 
court  has  confined  itself  to  the  rights  possessed  by  the  trustees,  as 
the  assignees  and  representatives  of  the  donors  and  founders,  for 
the  benefit  of  religion  and  literature.  Yet  it  is  not  clear  that  the 
trustees  ought  to  be  considered  as  destitute  of  such  beneficial  in- 
terest in  themselves  as  the  law  may  respect.  In  addition  to  their 
being  the  legal  owners  of  the  property,  and  to  their  having  a  free- 
hold right  in  the  powers  confided  to  them,  the  charter  itself 
countenances  the  idea  that  trustees  may  also  be  tutors  with  sala- 
ries. The  first  president  was  one  of  the  original  trustees;  and  the 
charter  provides,  that  in  case  of  vacancy  in  that  office,  "the  senior 
professor  or  tutor,  being  one  of  the  trustees,  shall  exercise  the 
office  of  president,  until  the  trustees  shall  make  choice  of,  and 
appoint  a  president."  According  to  the  tenor  of  the  charter,  then, 
the  trustees  might,  without  impropriety,  appoint  a  president  and 
other  professors  from  their  own  body.  This  is  a  power  not  entirely 
unconnected  with  an  interest.  Even  if  the  proposition  of  the 
counsel  for  the  defendant  were  sustained;  if  it  were  admitted,  that 
those  contracts  only  are  protected  by  the  constitution,  a  beneficial 
interest  in  which  is  vested  in  the  party  who  appears  in  court  to 
assert  that  interest;  yet  it  is  by  no  means  clear  that  the  Trustees 
of  Dartmouth  College  have  no  beneficial  interest  in  themselves. 

But  the  court  has  deemed  it  unnecessary  to  investigate  this 
particular  point,  being  of  opinion,  on  general  principles,  that  in 
these  private  eleemosynary  institutions,  the  body  corporate,  as  pos- 
sessing the  whole  legal  and  equitable  interest,  and  completely  rep- 
resenting the  donors,  for  the  purpose  of  executing  the  trust,  has 
rights  which  are  protected  by  the  constitution. 

It  results  from  this  opinion,  that  the  acts  of  the  legislature  of 
New  Hampshire,  which  are  stated  in  the  special  verdict  found  in 
this  cause,  are  repugnant  to  the  constitution  of  the  United  States; 
and  that  the  judgment  on  this  special  verdict  ought  to  have  been 
for  the  plaintiffs.  The  judgment  of  the  state  court  must,  there- 
fore, be  reversed. 


OGDEN  V.  SAUNDERS.  431 

[Justices  Washington  and  Story  delivered  concurring  opin- 
ions. Justice  Johnson  concurred  for  the  reasons  stated  by  the 
Chief  Justice;  Justice  Livingston  concurred  for  the  reasons 
stated  by  the  Chief  Justice  and  by  Justices  Washington  and 
Story.    Justice  Duvall  dissented.] 

Note. — "It  may  well  be  doubted  whether  any  decision  ever  de- 
livered by  any  court  has  had  such  a  pervading  operation  and  in- 
fluence in  controlling  legislation  as  this.  The  legislation,  however, 
so  controlled,  has  been  that  of  the  States  of  the  Union."  Miller, 
Lectures  on  the  Constitution  of  the  L'nited  States,  391. 


OGDEN   V.    SAUNDEES. 
12  Wheaton,  213.     Decided  1827. 

Error  to  the  district  court  of  the  United  States  for  Louisiana. 

This  was  an  action  of  assumpsit,  brought  in  the  court  below, 
by  the  defendant  in  error,  Saunders,  a  citizen  of  Kentucky,  against 
the  plaintiff  in  error,  Ogden,  a  citizen  of  Louisiana.  The  plaintiff 
below  declared  upon  certain  bills  of  exchange,  drawn  on  the  30th 
of  September,  1806,  by  one  Jordan,  at  Lexington,  in  the  State  of 
Kentucky,  upon  the  defendant  below,  Ogden,  in  the  city  of  New 
York  (the  defendant  then  being  a  citizen  and  resident  of  the  State 
of  New  York),  accepted  by  him  at  the  city  of  New  York,  and  pro- 
tested for  non-payment. 

The  defendant  below  pleaded  several  pleas,  among  which  was 
a  certificate  of  discharge  under  the  act  of  the  legislature  of  the 
State  of  New  York,  of  April  3,  1801,  for  the  relief  of  insolvent 
debtors,  commonly  called  the  three-fourths  act. 

The  jury  found  the  facts  in  the  form  of  a  special  verdict,  on 
which  the  court  rendered  a  judgment  for  the  plaintiff  below,  and 
the  cause  was  brought  by  writ  of  error  before  this  court.  The 
question  which  arose  under  this  plea  as  to  the  validity  of  the  law 
of  New  York  as  being  repugnant  to  the  constitution  of  the  United 
States,  was  argued  at  February  term,  1824,  .  .  .  and  the 
cause  was  continued  for  advisement  until  the  present  term.  It 
was  again  argued  at  the  present  term  (in  connection  with  several 
other  causes  standing  on  the  calendar,  and  involving  the  general 


432  CASES    ON    CONSTITUTIONAL    LAW. 

question  of  the  validity  of  the  state  bankrupt,  or  insolvent  laws). 

The  learned  judges  delivered  their  opinions  as  follows: — 

Washington,  J.  The  first  and  most  important  point  to  be  de- 
cided in  this  cause  turns  essentially  upon  the  question,  whether 
the  obligation  of  a  contract  is  impaired  by  a  State  bankrupt  or  in- 
solvent law,  which  discharges  the  person  and  the  future  acquisitions 
of  the  debtor  from  his  liability  under  a  contract  entered  into  in 
that  State  after  the  passage  of  the  act. 

This  question  has  never  before  been  distinctly  presented  to  the 
consideration  of  this  court,  and  decided,  although  it  has  been  sup- 
posed by  the  Judges  of  a  highly  respectable  state  court  that  it  was 
decided  in  the  case  of  M'Millan  v.  M'Neal,  4  W.,  209.  That  was 
the  case  of  a  debt  contracted  by  two  citizens  of  South  Carolina,  in 
that  State,  the  discharge  of  which  had  a  view  to  no  other  State. 
The  debtor  afterwards  removed  to  the  territory  of  Louisiana,  where 
he  was  regularly  discharged,  as  an  insolvent,  from  all  his  debts, 
under  an  act  of  the  legislature  of  that  State  passed  prior  to  the 
time  when  the  debt  in  question  was  contracted.  To  an  action 
brought  by  the  creditor  in  the  district  court  of  Louisiana,  the  de- 
fendant plead  in  bar  his  discharge,  under  the  law  of  that  territory, 
and  it  was  contended  by  the  counsel  for  the  debtor  in  this  court, 
that  the  law  under  which  the  debtor  was  discharged,  having  passed 
before  the  contract  was  made,  it  could  not  be  said  to  impair  its 
obligation.  The  cause  was  argued  on  one  side  only,  and  it  would 
seem  from  the  report  of  the  case,  that  no  written  opinion  was  pre- 
pared by  the  court.  The  chief  Justice  stated  that  the  circumstance 
of  the  state  law  under  which  the  debt  was  attempted  to  be  dis- 
charged having  been  passed  before  the  debt  was  contracted,  made 
no  difference  in  the  application  of  the  principle  which  had  been 
asesrted  by  the  court  in  the  case  of  Sturges  v.  Crowninshield,  4  W., 
122.  The  correctness  of  this  position  is  believed  to  be  incontro- 
vertible. The  principle  alluded  to  was,  that  a  state  bankrupt  law 
which  impairs  the  obligation  of  a  contract,  is  unconstitutional  in 
its  application  to  such  contract.  In  that  case,  it  is  true,  the  con- 
tract preceded  in  order  of  time  the  act  of  assembly,  under  which 
the  debtor  was  discharged,  although  it  was  not  thought  necessary 
to  notice  that  circumstance  in  the  opinion  which  was  pronounced. 
The  principle,  however,  remained,  in  the  opinion  of  the  court  de- 
livered in  M'Millan  v.  M'Xeal,  unaffected  by  the  circumstance 
that  the  law  of  Louisiana  preceded  a  contract  made  in  another 
State;   since  that  law,  having  no  extra-territorial  force,  never  did 


OGDEN  V.  SAUNDERS.  433 

at  any  time  govern  or  affect  the  obligation  of  such  contract.  It 
could  not,  therefore,  be  correctly  said  to  be  prior  to  the  contract, 
in  reference  to  its  obligation;  since  if,  upon  legal  principles,  it 
could  affect  the  contract,  that  could  not  happen  until  the  debtor 
became  a  citizen  of  Louisiana,  and  that  was  subsequent  to  the 
contract.  But  I  hold  the  principle  to  be  well  established,  that  a 
discharge  under  the  bankrupt  laws  of  one  government  does  not 
affect  contracts  made  or  to  be  executed  under  another,  whether 
the  law  be  prior  or  subsequent  in  the  date  to  that  of  the  contract; 
and  this  I  take  to  be  the  only  point  really  decided  in  the  case 
alluded  to.  Whether  the  chief  justice  was  correctly  understood 
by  the  reporter,  when  he  is  supposed  to  have  said,  "that  this  case 
was  not  distinguishable  in  principle  from  the  preceding  case  of 
Sturges  V.  Crowninshield,"  it  is  not  material  at  this  time  to  in- 
quire, because  I  understand  the  meaning  of  these  expressions  to 
go  no  further  than  to  intimate  that  there  was  no  distinction  be- 
tween the  cases  as  to  the  constitutional  objection,  since  it  professed 
to  discharge  a  debt  contracted  in  another  State,  which,  at  the  time 
it  was  contracted,  was  not  within  its  operation,  nor  subject  to  be 
discharged  by  it.  The  case  now  to  be  decided,  is  that  of  a  debt 
contracted  in  the  State  of  New  York,  by  a  citizen  of  that  State, 
from  which  he  was  discharged,  so  far  as  he  constitutionally  could 
be,  under  a  bankrupt  law  of  that  State,  in  force  at  the  time  when 
the  debt  was  contracted.  It  is  a  case,  therefore,  that  bears  no  re- 
semblance to  the  one  just  noticed. 

I  come  now  to  the  consideration  of  the  question,  which,  for  the 
first  time,  has  been  directly  brought  before  this  court  for  judg- 
ment.    .     .     . 

It  has  constantly  appeared  to  me,  throughout  the  different  in- 
vestigations of  this  question  to  which  it  has  been  my  duty  to 
attend,  that  the  error  of  those  who  controvert  the  constitutionality 
.of  the  bankrupt  law  under  consideration,  in  its  application  to  this 
'case,  if  they  be  in  error  at  all,  has  arisen  from  not  distinguishing 
accurately  between  a  law  which  impairs  a  contract,  and  one  which 
impairs  its  obligation.  A  contract  is  defined  by  all  to  be  an  agree- 
ment to  do  or  not  to  do  some  particular  act;  and  in  the  construc- 
tion of  this  agreement,  depending  essentially  upon  the  will  of  the 
parties  between  whom  it  is  formed,  we  seek  for  their  intention  with 
a  view  to  fulfill  it.  Any  law,  then,  which  enlarges,  abridges  or  in 
any  manner  changes  this  intention,  when  it  is  discovered,  neces- 
sarily impairs  the  contract  itself,  which  is  but  the  evidence  of  that 
intention.     .     .     . 

What  is  it,  then,  which  constitutes  the  obligation  of  a  con- 
28 


434  CASES    ON    CONSTITUTIONAL    LAW. 

tract?  The  answer  is  given  by  the  chief  justice,  in  the  case  of 
Sturges  V.  Crowninshield,  to  which  I  readily  assent  now,  as  I  did 
then;  it  is  the  law  which  binds  the  parties  to  perform  their  agree- 
ment. The  law,  then,  which  has  this  binding  obligation,  must 
govern  and  control  the  contract  in  every  shape  in  which  it  is  in- 
tended to  bear  upon  it,  whether  it  affect  its  validity,  construction, 
or  discharge. 

But  the  question,  which  law  is  referred  to  in  the  above  definition, 
still  remains  to  be  solved.  It  cannot,  for  a  moment,  be  conceded 
that  the  mere  moral  law  is  intended,  since  the  obligation  which 
that  imposes  is  altogether  of  the  imperfect  kind  which  the  parties 
to  it  are  free  to  obey  or  not,  as  they  please.  It  cannot  be  supposed 
that  it  was  with  this  law  the  grave  authors  of  this  instrument  were 
dealing. 

The  universal  law  of  all  civilized  nations,  which  declares  that 
men  shall  perform  that  to  which  they  have  agreed,  has  been  sup- 
posed by  the  counsel  who  have  argued  this  cause  for  the  defendant 
in  error,  to  be  the  law  which  is  alluded  to;  and  I  have  no  objection 
to  acknowledging  its  obligation,  whilst  I  must  deny  that  it  is  that 
which  exclusively  governs  the  contract.  It  is  upon  this  law  that 
the  obligation  which  nations  acknowledge  to  perform  their  com- 
pacts with  each  other  is  founded,  and  I,  therefore,  feel  no  objection 
to  answer  the  question  asked  by  the  same  counsel — what  law  it 
is  which  constitutes  the  obligation  of  the  compact  between  Vir- 
ginia and  Kentucky — by  admitting,  that  it  is  this  common  law  of 
nations  which  requires  them  to  perform  it.  I  admit  further  that 
it  is  this  law  which  creates  the  obligation  of  a  contract  made  upon 
a  desert  spot,  where  no  municipal  law  exists,  and  (which  was 
another  case  put  by  the  same  counsel)  which  contract,  by  the  tacit 
assent  of  all  nations,  their  tribunals  are  authorized  to  enforce. 

But  can  it  be  seriously  insisted  that  this,  any  more  than  the 
moral  law  upon  which  it  is  founded,  was  exclusively  in  the  con- 
templation of  those  who  framed  this  constitution?  What  is  the 
language  of  this  universal  law?  It  is  simply  that  all  men  are  bound 
to  perform  their  contracts.  The  injunction  is  as  absolute  as  the 
contracts  to  which  it  applies.  It  admits  of  no  qualification  and 
no  restraint,  either  as  to  its  validity,  construction,  or  discharge, 
further  than  may  be  necessary  to  develop  the  intention  of  the 
parties  to  the  contract.  And  if  it  be  true  that  this  is  exclusively 
the  law,  to  which  the  constitution  refers  us,  it  is  very  apparent  that 
the  sphere  of  state  legislation  upon  subjects  connected  with  the 
contracts  of  individuals,  would  be  abridged  beyond  what  it  can 
for  a  moment  be  believed  the  sovereign  States  of  this  Union  would 


OGDEN  V.  SAUNDERS.  435 

have  consented  to;  for  it  will  be  found,  upon  examination,  that 
there  are  few  laws  which  concern  the  general  police  of  a  State,  or 
the  government  of  its  citizens,  in  their  intercourse  with  each  other 
or  with  strangers,  which  may  not  in  some  way  or  other  affect  the 
contracts  which  they  have  entered  into,  or  may  thereafter  form. 
For  what  are  laws  of  evidence,  or  which  concern  remedies — frauds 
and  perjuries — laws  of  registration,  and  those  which  affect  land- 
lord and  tenant,  sales  at  auction,  acts  of  limitation,  and  those 
which  limit  the  fees  of  professional  men,  and  the  charges  of  tavern- 
keepers,  and  a  multitude  of  others  which  crowd  the  codes  of  every 
State,  but  laws  which  may  affect  the  validity,  construction,  or  dura- 
tion, or  discharge  of  contracts?  Whilst  I  admit,  then,  that  this 
common  law  of  nations,  which  has  been  mentioned,  may  form  in 
part  the  obligation  of  a  contract,  I  must  unhesitatingly  insist  that 
this  law  is  to  be  taken  in  strict  subordination  to  the  municipal 
laws  of  the  land  where  the  contract  is  made,  or  is  to  be  executed. 
The  former  can  be  satisfied  by  nothing  short  of  performance; 
the  latter  may  affect  and  control  the  validity,  construction,  evi- 
dence, remedy,  performance,  and  discharge  of  the  contract.  The 
former  is  the  common  law  of  all  civilized  nations,  and  of  each  of 
them;  the  latter  is  the  peculiar  law  of  each,  and  is  paramount  to 
the  former  whenever  they  come  in  collision  with  each  other. 

It  is,  then,  the  municipal  law  of  the  State,  whether  that  be 
written  or  unwritten,  which  is  emphatically  the  law  of  the  con- 
tract made  within  the  State,  and  must  govern  it  throughout,  wher- 
ever its  performance  is  sought  to  be  enforced. 

It  forms,  in  my  humble  opinion,  a  part  of  the  contract,  and 
travels  with  it  wherever  the  parties  to  it  may  be  found.  It  is  so 
regarded  by  all  the  civilized  nations  of  the  world,  and  is  enforced 
by  the  tribunals  of  those  nations  according  to  its  own  forms,  unless 
the  parties  to  it  have  otherwise  agreed,  as  where  the  contract  is  to 
be  executed  in,  or  refers  to  the  laws  of,  some  other  country  than 
that  in  which  it  is  formed,  or  where  it  is  of  an  immoral  character, 
or  contravenes  the  policy  of  the  nation  to  whose  tribunals  the  ap- 
peal is  made;  in  which  latter  cases  the  remedy  which  the  comity 
of  nations  affords  for  enforcing  the  obligation  of  contracts  wher- 
ever formed,  is  denied.  Free  from  these  objections,  this  law,  which 
accompanies  the  contract  as  forming  a  part  of  it,  is  regarded  and 
enforced  everywhere,  whether  it  affect  the  validity,  construction, 
or  discharge  of  the  contract.  It  is  upon  this  principle  of  universal 
law,  that  the  discharge  of  the  contract,  or  of  one  of  the  parties 
to  it,  by  the  bankrupt  laws  of  the  country  where  it  was  made, 
operates  as  a  discharge  everywhere. 


436  CASES    ON    CONSTITUTIONAL    LAW. 

If,  then,  it  be  true  that  the  law  of  the  country  where  the  contract 
is  made  or  to  be  executed,  forms  a  part  of  that  contract  and  of 
its  obligation,  it  would  seem  to  be  somewhat  of  a  solecism  to  say 
that  it  does,  at  the  same  time,  impair  that  obligation. 

But  it  is  contended  that  if  the  municipal  law  of  the  State  where 
the  contract  is  so  made  form  a  part  of  it,  so  does  that  clause  of 
the  constitution  which  prohibits  the  States  from  passing  laws  to 
impair  the  obligation  of  contracts;  and,  consequently,  that  the 
law  is  rendered  inoperative  by  force  of  its  controlling  associate. 
All  this  I  admit,  provided  it  be  first  proved  that  the  law  so  incor- 
porated with  and  forming  a  part  of  the  contract  -does,  in  effect, 
impair  its  obligation;  and  before  this  can  be  proved,  it  must  be 
affirmed  and  satisfactorily  made  out,  that  if,  by  the  terms  of  the 
contract,  it  is  agreed  that,  on  the  happening  of  a  certain  event,  as, 
upon  the  future  insolvency  of  one  of  the  parties,  and  his  surrender 
of  all  his  property  for  the  benefit  of  his  creditors,  the  contract  shall 
be  considered  as  performed  and  at  an  end,  this  stipulation  would 
impair  the  obligation  of  the  contract.  If  this  proposition  can  be 
successfully  affirmed,  I  can  only  say,  that  the  soundness  of  it  is 
beyond  the  reach  of  my  mind  to  understand. 

Again,  it  is  insisted  that  if  the  law  of  the  contract  forms  a  part 
of  it,  the  law  itself  cannot  be  repealed  without  impairing  the  obli- 
gation of  the  contract.  This  proposition  I  must  be  permitted  to 
deny.  It  may  be  repealed  at  any  time,  at  the  will  of  the  legis- 
lature, and  then  it  ceases  to  form  any  part  of  those  contracts  which 
may  afterwards  be  entered  into.  The  repeal  is  no  more  void  than 
a  new  law  would  be  which  operates  upon  contracts  to  affect  their 
validity,  construction,  or  duration.  Both  are  valid  (if  the  view 
which  I  take  of  this  case  be  correct),  as  they  may  affect  contracts 
afterwards  formed;  but  neither  are  so,  if  they  bear  upon  existing 
contracts;  and,  in  the  former  case,  in  which  the  repeal  contains 
no  enactment,  the  constitution  would  forbid  the  application  of  the 
repealing  law  to  past  contracts,  and  to  those  only. 

To  illustrate  this  argument,  let  us  take  four  laws,  which,  either 
by  new  enactments,  or  by  the  repeal  of  former  laws,  may  affect 
contracts  as  to  their  validity,  construction,  evidence,  or  remedy. 

Laws  against  usury  are  of  the  first  description. 

A  law  which  converts  a  penalty,  stipulated  for  by  the  parties,  as 
the  only  atonement  for  a  breach  of  the  contract,  into  a  mere  agree- 
ment for  a  just  compensation,  to  be  measured  by  the  legal  rate  of 
interest,  is  of  the  second. 

The  statute  of  frauds,  and  the  statute  of  limitations,  may  be 
cited  as  examples  of  the  last  two. 


OGDEN  V.  SAUNDERS.  437 

« 

The  validity  of  these  laws  can  never  be  questioned  by  those  who 
accompany  me  in  the  view  which  I  take  of  the  question  under 
consideration,  unless  they  operate,  by  their  express  provisions, 
upon  contracts  previously  entered  into;  and  even  then  they  are 
void  only  so  far  as  they  do  so  operate;  because,  in  that  case,  and  in 
that  case  only,  do  they  impair  the  obligation  of  those  contracts. 
But  if  they  equally  impair  the  obligation  of  contracts  subsequently 
made,  which  they  must  do,  if  this  be  the  operation  of  a  bankrupt 
law  upon  such  contracts,  it  would  seem  to  follow  that  all  such 
laws,  whether  in  the  form  of  new  enactments,  or  of  repealing  laws, 
producing  the  same  legal  consequences,  are  made  void  by  the  con- 
stitution; and  yet  the  counsel  for  the  defendants  in  error  have  not 
ventured  to  maintain  so  alarming  a  proposition. 

If  it  be  conceded  that  those  laws  are  not  repugnant  to  the  con- 
stitution, so  far  as  they  apply  to  subsequent  contracts,  I  am  yet 
to  be  instructed  how  to  distinguish  between  those  laws,  and  the 
one  now  under  consideration.  How  has  this  been  attempted  by  the 
learned  counsel  who  have  argued  this  cause  upon  the  ground  of 
such  a  disi;inction? 

They  have  insisted  that  the  effect  of  the  law  first  supposed,  is 
to  annihilate  the  contract  in  its  birth,  or  rather  to  prevent  it  from 
having  a  legal  existence,  and  consequently,  that  there  is  no  obliga- 
tion to  be  impaired.  But  this  is  clearly  not  so,  since  it  may  legiti- 
mately avoid  all  contracts  afterwards  entered  into,  which  reserve  to 
the  lender  a  higher  rate  of  interest  than  this  law  permits. 

The  validity  of  the  second  law  is  admitted,  and  yet  this  can  only 
be  in  its  application  to  subsequent  contracts;  for  it  has  not,  and  I 
think  it  cannot,  for  a  moment,  be  maintained,  that  a  law  which, 
in  express  terms,  varies  the  construction  of  an  existing  contract, 
or  which,  repealing  a  former  law,  is  made  to  produce  the  same 
effect,  does  not  impair  tlie  obligation  of  that  contract. 

The  statute  of  frauds,  and  the  statute  of  limitations,  Avhich 
have  been  put  as  examples  of  the  third  and  fourth  classes  of  laws, 
are  also  admitted  to  be  valid,  because  they  merely  concern  the 
modes  of  proceeding  in  the  trial  of  causes.  The  former,  supplying 
a  rule  of  evidence,  and  the  latter,  forming  a  part  of  the  remedy 
given  by  the  legislature  to  enforce  the  obligation,  and  likewise  pro- 
viding a  rule  of  evidence. 

All  this  I  admit.  But  how  does  it  happen  that  these  laws,  like 
those  which  affect  the  validity  and  construction  of  contracts,  are 
valid  as  to  subsequent,  and  yet  void  as  to  prior  and  subsisting  con- 
tracts? For  we  are  informed  by  the  learned  Judge  who  delivered 
the  opinion  of  this  court,  in  the  case  of  Sturges  v.  Crowninshield, 


438  CASES    ON    CONSTITUTIONAL    LAW. 

4  W.,  122,  that,  "if,  in  a  State  where  six  years  may  be  pleaded  in 
bar  to  an  action  of  assumpsit,  a  law  should  pass  declaring  that  con- 
tracts already  in  existence,  not  barred  by  the  statute,  should  be 
construed  within  it,  there  could  be  little  doubt  of  its  unconstitu- 
tionality." 

It  is  thus  most  apparent  that,  whichever  way  we  turn,  whether 
to  laws  affecting  the  validity,  construction,  or  discharges  of  con- 
tracts, or  the  evidence  or  remedy  to  be  employed  in  enforcing  them, 
we  are  met  by  this  overruling  and  admitted  distinction,  between 
those  which  operate  retrospectively,  and  those  which  operate  pros- 
pectively. In  all  of  them  the  law  is  pronounced  to  be  void  in  the 
first  class  of  cases,  and  not  so  in  the  second. 

Let  us  stop,  then,  to  make  a  more  critical  examination  of  the 
act  of  limitations,  which,  although  it  concerns  the  remedy,  or,  if 
it  must  be  conceded,  the  evidence,  is  yet  void  or  otherwise,  as  it  is 
made  to  apply  retroactively,  or  prospectively,  and  see  if  it  can, 
upon  any  intelligible  principle,  be  distinguished  from  a  bankrupt 
law,  when  applied  in  the  same  manner.  What  is  the  effect  of  the 
former?  The  answer  is,  to  discharge  the  debtor  and  all. his  future 
acquisitions  from  this  contract;  because  he  is  permitted  to  plead 
it  in  bar  of  any  remedy  which  can  be  instituted  against  him,  and 
consequently  in  bar  or  destruction  of  the  obligation  which  his  con- 
tract imposed  upon  him.  What  is  the  effect  of  a  discharge  under 
a  bankrupt  law?  I  can  answer  this  question  in  no  other  terms 
than  those  which  are  given  to  the  former  question.  If  there  be  a 
difference,  it  is  one  which,  in  the  eye  of  justice,  at  least,  is  more 
favorable  to  the  validity  of  the  latter  than  of  the  former;  for  in 
the  one,  the  debtor  surrenders  everything  which  he  possesses 
towards  the  discharge  of  his  obligation,  and  in  the  other,  he  sur- 
renders nothing,  and  sullenly  shelters  himself  behind  a  legal  objec- 
tion with  which  the  law  has  provided  him,  for  the  purpose  of  pro- 
tecting his  person,  and  his  present  as  well  as  his  future  acquisitions, 
against  the  performance  of  his  contract. 

It  is  said  that  the  former  does  not  discharge  him  absolutely 
from  his  contract,  because  it  leaves  a  shadow  sufficiently  substan- 
tial to  raise  a  consideration  for  a  new  promise  to  pay.  And  is  not 
this  equally  the  case  with  a  certificated  bankrupt,  who  afterwards 
promises  to  pay  a  debt  from  which  his  certificate  had  discharged 
him?  In  the  former  case,  it  is  said  the  defendant  must  plead  the 
statute  in  order  to  bar  the  remedy  and  to  exempt  him  from  his 
obligation.  And  so,  I  answer,  he  must  plead  his  discharge  under 
the  bankrupt  law,  and  his  conformity  to  it,  in  order  to  bar  the 
remedy  of  his  creditor,  and  to  secure  to  himself  a  like  exemption. 


OGDEN  V.  SAUNDERS.  439 

I  have,  in  short,  sought  in  vain  for  some  other  grounds  on  which 
to  distinguish  the  two  laws  from  each  other  than  those  which  were 
suggested  at  the  bar.  I  can  imagine  no  other,  and  I  confidently 
believe  that  none  exist  which  will  bear  the  test  of  a  critical  ex- 
amination. 

To  the  decision  of  this  court,  made  in  the  case  of  Sturges  v. 
Crowninshield,  and  to  the  reasoning  of  the  learned  Judge  who 
delivered  that  opinion,  I  entirely  submit;  although  I  did  not  then, 
nor  can  I  now  bring  my  mind  to  concur  in  that  part  of  it  which 
admits  the  constitutional  power  of  the  state  legislatures  to  pass 
bankrupt  laws,  by  which  I  understand  those  laws  which  discharge 
the  person  and  the  future  acquisitions  of  the  bankrupt  from  his 
debts.  I  have  always  thought  that  the  power  to  pass  such  a  law 
was  exclusively  vested  by  the  constitution  in  the  legislature  of  the 
United  States.  But  it  becomes  me  to  believe  that  this  opinion  was 
and  is  incorrect,  since  it  stands  condemned  by  the  decision  of  a 
majority  of  this  court,  solemnly  pronounced. 

After  making  this  acknowledgment,  I  refer  again  to  the  above 
decision  with  some  degree  of  confidence  in  support  of  the  opinion, 
to  which  I  am  now  inclined  to  come,  that  a  bankrupt  law  which 
operates  prospectively,  or  in  so  far  as  it  does  so  operate,  does  not 
violate  the  constitution  of  the  United  Staites.  It  is  there  stated 
"that,  until  the  power  to  pass  uniform  laws  on  the  subject  of  bank- 
ruptcies be  exercised  by  congress,  the  States  are  not  forbidden  to 
pass  a  bankrupt  law,  provided  it  contain  no  principle  which  vio- 
lates the  10th  section  of  the  1st  article  of  the  constitution  of  the 
United  States.'^  The  question  in  that  case  was,  whether  the  law 
of  New  York,  passed  on  the  3d  of  April,  1811,  which  liberaites 
not  only  the  person  of  the  debtor,  but  discharges  him  from  all 
liability  for  any  debt  contracted  previous  as  well  as  subsequent  to 
his  discharge,  on  his  surrendering  his  property  for  the  use  of  his 
creditors,  was  a  valid  law  under  the  constitution,  in  its  application 
to  a  debt  contracted  prior  to  its  passage.  The  court  decided  that 
it  was  not,  upon  the  single  ground  that  it  impaired  the  obligation 
of  that  contract.  And  if  it  be  true  that  the  States  cannot  pass  a 
similar  law  to  operate  upon  contracts  subsequently  entered  into, 
it  follows  inevitably,  either  that  they  cannot  pass  such  laws  at  all, 
contrary  to  the  express  declaration  of  the  court,  as  before  quoted, 
or  that  such  laws  do  not  impair  the  obligation  of  contracts  subse- 
quently entered  into;  in  fine,  it  is  a  self-evident  proposition  that 
every  contract  that  can  be  formed,  must  either  precede  or  follow 
any  law  by  which  it  may  be  affected. 

I  have,  throughout  the  preceding  part  of  this  opinion,  considered 


440  CASES    ON    CONSTITUTIONAL    LAW. 

the  municipal  law  of  the  country  where  the  contract  is  made  as 
incorporated  with  the  contract,  whether  it  aflEects  its  validity,  con- 
struction, or  discharge.  But  I  think  it  quite  immaterial  to  stickle 
for  this  position,  if  it  be  conceded  to  me,  what  can  scarcely  be 
denied,  that  this  municipal  law  constitutes  the  law  of  the  contract 
so  formed,  and  must  govern  it  throughout.  I  hold  the  legal  con- 
sequences to  be  the  same  in  whichever  view  the  law,  as  it  affects 
the  contract,  is  considered. 

I  come  now  to  a  more  particular  examination  and  construction 
of  the  section  under  which  this  question  arises;  and  I  am  free  to 
acknowledge  that  the  collocation  of  the  subjects  for  which  it  pro- 
vides, has  made  an  irresistible  impression  upon  my  mind,  much 
stronger,  I  am  persuaded,  than  I  can  find  language  to  communicate 
to  the  minds  of  others. 

It  declares  that  "no  State  shall  coin  money,  emit  bills  of  credit, 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts.^^  These  prohibitions,  associated  with  the  powers  granted 
to  congress  "to  coin  money,  and  to  regulate  the  value  thereof,  and 
of  foreign  coins,"  most  obviously  constitute  members  of  the  same 
family,  being  upon  the  same  subject  and  governed  by  the  same 
policy. 

This  policy  was  to  provide  a  fixed  and  uniform  standard  of  value 
throughout  the  United  States,  by  which  the  commercial  and  other 
dealings  between  the  citizens  thereof,  or  between  them  and  for- 
eigners, as  well  as  the  moneyed  transactions  of  the  government, 
should  be  regulated.  For  it  might  well  be  asked,  why  vest  in  con- 
gress the  power  to  establish  a  uniform  standard  of  value  by  the 
means  pointed  out,  if  the  States  might  use  the  same  means,  and 
thus  defeat  the  uniformity  of  the  standard,  and,  consequently,  the 
standard  itself?  And  why  establish  a  standard  at  all,  for  the  gov- 
ernment of  the  various  contracts  which  might  be  entered  into,  if 
those  contracts  might  afterwards  be  discharged  by  a  different 
standard,  or  by  that  which  is  not  money,  under  the  authority  of 
State  tender  laws?  It  is  obvious,  therefore,  that  these  prohibitions, 
in  the  10th  section,  are  entirely  homogeneous,  and  are  essential  to 
the  establishment  of  a  uniform  standard  of  value,  in  the  formation 
and  discharge  of  contracts.  It  is  for  this  reason,  independent  of 
the  general  phraseology  which  is  employed,  that  the  prohibition  in 
regard  to  State  tender  laws  will  admit  of  no  construction  which 
would  confine  it  to  State  laws  which  have  a  retrospective  operation. 

The  next  class  of  prohibitions  contained  in  this  section  consists 
of  bills  of  attainder,  ex  post  facto  laws,  and  laws  impairing  the 
obligation  of  contracts. 


OGDEN  V.  SAUNDERS.  441 

Here,  too,  we  observe,  as  I  think,  members  of  the  same  family 
brought  together  in  the  most  intimate  connection  with  each  other. 
The  States  are  forbidden  to  pass  any  bill  of  attainder  or  ex  post 
facto  law,  by  which  a  man  shall  be  punished  criminally  or  penally, 
by  loss  of  life,  of  his  liberty,  property,  or  reputation,  for  an  act 
which,  at  the  time  of  its  commission,  violated  no  existing  law  of  the 
land.  Why  did  the  authors  of  the  constitution  turn  their  attention 
to  this  subject,  which,  at  the  first  blush,  would  appear  to  be  pe- 
culiarly fit  to  be  left  to  the  discretion  of  those  who  have  the  police 
and  good  government  of  the  State  under  their  management  and 
control?  The  only  answer  to  be  given  is,  because  laws  of  this 
character  are  oppressive,  unjust,  and  tyrannical;  and,  as  such,  arc 
condemned  by  the  universal  sentence  of  civilized  man.  The  injus- 
tice and  tyranny  which  characterizes  ex  post  facto  laws,  consists 
altogether  in  their  retrospective  operation,  which  applies  with 
equal  force,  although  not  exclusively,  to  bills  of  attainder. 

But  if  it  was  deemed  wise  and  proper  to  prohibit  State  legislation 
as  to  retrospective  laws,  which  concern,  almost  exclusively,  the 
citizens  and  inhabitants  of  the  particular  State  in  which  this  legis- 
lation takes  place,  how  much  more  did  it  concern  the  private  and 
political  interests  of  the  citizens  of  all  the  States,  in  their  com- 
mercial and  ordinary  intercourse  with  each  other,  that  the  same 
prohibition  should  be  extended  civilly  to  the  contracts  which  they 
might  enter  into? 

If  it  were  proper  to  prohibit  a  state  legislature  to  pass  a  retro- 
spective law,  which  should  take  from  the  pocket  of  one  of  its  own 
citizens  a  single  dollar  as  a  punishment  for  an  act  which  was  inno- 
cent at  the  time  it  was  committed;  how  much  more  proper  was  it 
to  prohibit  laws  of  the  same  character  precisely,  which  might  de- 
prive the  citizens  of  other  States,  and  foreigners  as  well  as  citizens 
of  the  same  State,  of  thousands,  to  which,  by  their  contracts,  they 
were  justly  entitled,  and  which  they  might  possibly  have  realized 
but  for  such  State  interference?  How  natural,  then,  was  it,  under 
the  influence  of  these  considerations,  to  interdict  similar  legislation 
in  regard  to  contracts,  by  providing  that  no  State  should  pass  laws 
impairing  the  obligation  of  past  contracts?  It  is  true  that  the  first 
two  of  these  prohibitions  apply  to  laws  of  a  criminal,  and  the  last 
to  laws  of  a  civil  character;  but  if  I  am  correct  in  my  view  of  the 
spirit  and  motives  of  these  prohibitions,  they  agree  in  the  principle 
which  suggested  them.  They  are  founded  upon  the  same  reason, 
and  the  application  of  it  is  at  least  as  strong  to  the  last  as  it  is  to 
the  first  two  prohibitions. 

But  these  reasons  are  altogether  inapplicable  to  laws  of  a  pros- 


4'42  CASES    ON    CONSTITUTIONAL    LAW. 

pective  character.  There  is  nothing  unjust  or  tyrannical  in  pun- 
ishing offenses  prohibited  by  law,  and  committed  in  violation  of 
that  law.  Nor  can  it  be  unjust  or  oppressive,  to  declare  by  law  that 
contracts  subsequently  entered  into,  may  be  discharged  in  a  way 
different  from  that  which  the  parties  have  provided,  but  which 
they  know,  or  may  know,  are  liable,  under  certain  circumstances, 
to  be  discharged  in  a  manner  contrary  to  the  provisions  of  their 
contract. 

Thinking,  as  I  have  always  done,  that  the  power  to  pass  bank- 
rupt laws  was  intended  by  the  authors  of  the  constitution  to  be 
exclusive  in  congress,  or,  at  least,  that  they  expected  the  power 
vested  in  that  body  would  be  exercised,  so  as  effectually  to  prevent 
its  exercise  by  the  States,  it  is  the  more  probable  that,  in  refer- 
ence to  all  other  interferences  of  the  state  legislatures  upon  the 
subject  of  contracts,  retrospective  laws  were  alone  in  the  contem- 
plation of  the  convention.     .     .     . 

But  why,  it  has  been  asked,  forbid  the  States  to  pass  laws  mak- 
ing anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts 
contracted  subsequent  as  well  as  prior  to  the  law  which  author- 
izes it;  and  yet  confine  the  prohibition  to  pass  laws  impairing  the 
obligation  of  contracts  to  past  contracts,  or,  in  other  words,  to 
future  bankrupt  laws,-  when  the  consequence  resulting  from  each 
is  the  same,  the  latter  being  considered  by  the  counsel  as  being,  in 
truth,  nothing  less  than  tender  laws  in  disguise. 

An  answer  to  this  question  has,  in  part,  been  anticipated  b}' 
some  of  the  preceding  observations.  The  power  to  pass  bankrupt 
laws  having  been  vested  in  congress,  either  as  an  exclusive  power, 
or  under  the  belief  that  it  would  certainly  be  exercised;  it  is  highly 
probable  that  state  legislation  upon  that  subject  was  not  within  the 
contemplation  of  the  convention;  or,  if  it  was,  it  is  quite  unlikely 
that  the  exercise  of  the  power,  by  the  state  legislatures,  would 
have  been  prohibited  by  the  use  of  terms  which,  I  have  endeavored 
to  show,  are  inapplicable  to  laws  intended  to  operate  prospectively. 
For  had  the  prohibition  been  to  pass  laws  impairing  contracts,  in- 
stead of  the  obligation  of  contracts,  I  admit  that  it  would  have 
borne  the  construction  which  is  contended  for,  since  it  is  clear 
that  the  agreement  of  the  parties  in  the  first  case  would  be  im- 
paired as  much  by  a  prior  as  it  would  be  by  a  subsequent  bankrupt 
law.  It  has,  besides,  been  attempted  to  be  shown  that  the  limited 
restriction  upon  state  legislation,  imposed  by  the  former  prohi- 
bition, might  be  submitted  to  by  the  States,  whilst  the  extensive 
operation  of  the  latter  would  have  hazarded,  to  say  the  least  of  it, 
'  the  adoption  of  the  constitution  by  the  state  conventions. 


OGDEN  V.  SAUNDERS.  443 

But  an  answer,  still  more  satisfactory  to  my  mind,  is  this:  tender 
laws,  of  the  description  stated  in  this  section,  are  always  unjust; 
and,  where  there  is  an  existing  bankrupt  law  at  the  time  the  con- 
tract is  made,  they  can  seldom  be  useful  to  the  honest  debtor.  They 
violate  the  agreement  of  the  parties  to  it,  without  the  semblance 
of  an  apology  for  the  measure,  since  they  operate  to  discharge  the 
debtor  from  his  undertaking,  upon  terms  variant  from  those  by 
which  he  bound  himself,  to  the  injury  of  the  creditor,  and  unsup- 
ported, in  many  cases,  by  the  plea  of  necessity.  They  extend  relief 
to  the  opulent  debtor,  who  does  not  stand  in  need  of  it;  as  well  as 
to  the  one  who  is,  by  misfortunes,  often  unavoidable,  reduced  to 
poverty,  and  disabled  from  complying  with  his  engagements.  In 
relation  to  subsequent  contracts,  they  are  unjust  when  extended 
to  the  former  class  of  debtors,  and  useless  to  the  second,  since 
they  may  be  relieved  by  conforming  to  the  requisitions  of  the  state 
bankrupt  law,  where  there  is  one.  Being  discharged  by  this  law 
from  all  his  antecedent  debts,  and  having  his  future  acquisitions 
secured  to  him,  an  opportunity  is  afforded  him  to  become  once 
more  a  useful  member  of  society. 

If  this  view  of  the  subject  be  correct,  it  will  be  difficult  to  prove 
that  a  prospective  bankrupt  law  resembles,  in  any  of  its  features, 
a  law  which  should  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts. 

I  shall  now  conclude  this  opinion  by  repeating  the  acknowledg- 
ment which  candor  compelled  me  to  make  in  its  commencement, 
that  the  question  which  I  have  been  examining  is  involved  in  dif- 
ficulty and  doubt.  But  if  I  could  rest  my  opinion  in  favor  of  the 
constitutionality  of  the  law  on  which  the  question  arises,  on  no 
other  ground  tlian  this  doubt  so  felt  and  acknowledged,  tha:t  alone 
would,  in  my  estimation,  be  a  satisfactory  vindication  of  it.  It  is 
but  a  decent  respect  due  to  the  wisdom,  the  integrity,  and  the 
patriotism  of  the  legislative  body  by  which  any  law  is  passed^  to 
presume  in  favor  of  its  validity,  until  its  violation  of  the  constitu- 
tion is  proved  beyond  all  reasonable  doubt.  This  has  always  been 
the  language  of  this  court,  when  that  subject  has  called  for  its 
decision;  and  I  know  that  it  expresses  the  honest  sentiments  of 
each  and  every  member  of  this  bench.  I  am  perfectly  satisfied 
that  it  is  entertained  by  those  of  them  from  whom  it  is  the  mis- 
fortune of  the  majority  of  the  court  to  differ  on  the  present  occa- 
sion, and  that  they  feel  no  reasonable  doubt  of  the  correctness  of 
the  conclusion  to  which  their  best  judgment  has  conducted  them. 


444  CASES    ON    CONSTITUTIONAL    LAW. 

My  opinion  is,  that  the  judgment  of  the  court  below  ought  to 
be  reversed,  and  judgment  given  for  the  plaintiff  in  error.     .     .     . 

[Justices  Johnson,  Thompson,  and  Thimble  delivered  con- 
curring opinions.  Chief  Justice  Marshall  delivered  a  dissent- 
ing opinion,  in  which  Justices  Duvall  and  Story  concurred.] 

Judgment  having  been  entered  in  favor  of  the  validity  of  a  cer- 
tificate of  discharge  under  the  state  laws  in  those  cases,  argued  in 
connection  with  Ogden  v.  Saunders,  where  the  contract  was  made 
between  citizens  of  the  State  under  whose  law  the  discharge  was 
obtained,  and  in  whose  courts  the  certificate  was  pleaded,  the  cause 
was  further  argued  by  the  same  counsel,  upon  the  points  reserved, 
as  to  the  effect  of  such  a  discharge  in  respect  to  a  contract  made 
with  a  citizen  of  another  State,  and  where  the  certificate  was 
pleaded  in  the  courts  of  another  State,  or  of  the  United  States. 

Johnson,  J.  I  am  instructed  by  the  majority  of  the  court  finally 
to  dispose  of  this  cause.  The  present  majority  is  not  the  same 
which  determined  the  general  question  on  the  constitutionality 
of  state  insolvent  laws,  with  reference  to  the  violation  of  the  obli- 
gation of  contracts.  I  now  stand  united  with  the  minority  on  the 
former  question,  and,  therefore,  feel  it  due  to  myself  and  the  com- 
munity to  maintain  my  consistency. 

The  question  now  to  be  considered  is,  whether  a  discharge  of  a 
debtor  under  a  state  insolvent  law,  would  be  valid  against  a  cred- 
itor or  citizen  of  another  State,  who  has  never  voluntarily  subjected 
himself  to  the  state  laws,  otherwise  than  by  the  origin  of  his  con- 
tract. 

As  between  its  own  citizens,  whatever  be  the  origin  of  the  con- 
tract, there  is  now  no  question  to  be  made  on  the  effect  of  such  a 
discharge;  nor  is  it  to  be  questioned,  that  a  discharge  not  valid 
under  the  constitution  in  the  courts  of  the  United  States,  is  equally 
invalid  in  the  state  courts.  The  question  to  be  considered  goes  to 
the  invalidity  of  the  discharge  altogether,  and,  therefore,  steers 
clear  of  that  provision  in  the  constitution  which  purports  to  give 
validity  in  every  State  to  the  records,  judicial  proceedings,  and  so 
forth,  o^  each  State. 

The  question  now  to  be  considered,  was  anticipated  in  the  case 
of  Sturges  v.  Crowninshield,  4  W.,  122,  when  the  court,  in  the 
close  of  the  opinion  delivered,  declared  that  it  means  to  confine 


OGDEN  V.  SAUNDERS.  445 

its  views  to  the  case  then  under  consideration,  and  not  to  commit 
itself  as  to  those  in  which  the  interests  and  rights  of  a  citizen  of 
another  State  are  implicated. 

The  question  is  one  partly  international,  partly  constitutional. 
My  opinion  on  the  subject  is  briefly  this:  that  the  provision  in  the 
constitution  which  gives  the  power  to  the  general  government  to 
establish  tribunals  of  its  own  in  every  State,  in  order  that  the  citi- 
zens of  other  States  or  sovereignties  might  therein  prosecute  their 
rights  under  the  jurisdiction  of  the  United  States,  had  for  its  object 
an  harmonious  distribution  of  justice  throughout  the  Union;  to 
confine  the  States,  in  the  exercise  of  their  judicial  sovereignty,  to 
cases  between  their  own  citizens;  to  prevent,  in  fact,  the  exercise 
of  that  very  power  over  the  rights  of  citizens  of  other  States,  which 
the  origin  of  the  contract  might  be  supposed  to  give  to  each  State; 
and  thus,  to  obviate  that  conflidus  legum,  which  has  employed  the 
pens  of  Huberus  and  various  others,  and  which  any  one  who  studies 
the  subject  will  plainly  perceive  it  is  infinitely  more  easy  to  prevent 
than  to  adjust. 

These  conflicts  of  power  and  right  necessarily  arise  only  after 
contracts  are  entered  into.  Contracts,  then,  become  the  appropri- 
ate subjects  of  judicial  cognizance;  and  if  the  just  claims  which 
they  give  rise  to,  are  violated  by  arbitrary  laws,  or  if  the  course  of 
distributive  justice  be  turned  aside,  or  obstructed  by  legislative 
interference,  it  becomes  a  subject  of  jealousy,  irritation,  and  na- 
tional complaint  or  retaliation. 

It  is  not  unimportant  to  observe,  that  the  constitution  was 
adopted  at  the  very  period  when  the  courts  of  Great  Britain  were 
engaged  in  adjusting  the  conflicts  of  right  which  arose  upon  their 
own  bankrupt  law,  among  the  subjects  of  that  crown  in  the  several 
dominions  of  Scotland,  Ireland,  and  the  West  Indies.  The  first 
case  M^e  have  on  the  effect  of  foreign  discharges,  that  of  Ballantine 
V.  Golding,  1  Cooke's  Bank.  Law,  487,  occurred  in  1783,  and  the 
law  could  hardly  be  held  settled  before  the  case  of  Hunter  v.  Potts, 
4  Term  Rep.,  182,  which  was  decided  in  1791. 

Any  one  who  will  .take  the  trouble  to  investigate  the  subject, 
will,  I  think,  be  satisfied,  that  although  the  British  courts  profess 
to  decide  upon  a  principle  of  universal  law,  when  adjudicating 
upon  the  effect  of  a  foreign  discharge,  neither  the  passage  in  Vattel, 
to  which  they  constantly  refer,  nor  the  practice  and  doctrines  of 
other  nations,  will  sustain  them  in  the  principle  to  the  extent  in 
which  they  assert  it.  It  was  all-important  to  a  great  commercial 
nation,  the  creditors  of  all  the  rest  of  the  world,  to  maintain  the 
doctrine  as  one  of  universal  obligation,  that  the  assignment  of  the 


446  CASES    ON    CONSTITUTIONAL    LAW. 

bankrupt's  effects,  under  a  law  of  the  country  of  the  contract, 
should  carry  the  interest  in  his  debts,  wherever  his  debtor  may 
reside;  and  that  no  foreign  discharge  of  his  debtor  should  operate 
against  debts  contracted  with  the  bankrupt  in  his  own  country. 
But  I  think  it  is  perfectly  clear  that  in  the  United  States,  a  different 
doctrine  has  been  established;  and,  since  the  power  to  discharge 
the  bankrupt  is  asserted  on  the  same  principle  with  the  power  to 
assign  his  debts,  that  the  departure  from  it  in  the  one  instance 
carries  with  it  a  negation  of  the  principle  altogether. 

It  is  vain  to  deny  that  it  is  now  the  established  doctrine  in 
England,  that  the  discharge  of  a  bankrupt  shall  be  effectual  against 
contracts  of  the  State  that  give  the  discharge,  whatsoever  be  the 
allegiance  or  country  of  the  creditor.  But  I  think  it  equally  clear, 
that  this  is  a  rule  peculiar  to  her  jurisprudence,  and  that  reciprocity 
is  the  general  rule  of  other  countries;  that  the  effect  given  to  such 
discharge  is  so  much  a  matter  of  comity,  that  the  States  of  the 
European  continent,  in  all  cases,  reserve  the  right  of  deciding 
whether  reciprocity  will  not  operate  injuriously  upon  their  own 
citizens. 

Huberus,  in  his  third  axiom  on  this  subject,  puts  the  effect  of 
such  laws  upon  the  ground  of  courtesy,  and  recognizes  the  reserva- 
tion that  I  have  mentioned;  other  writers  do  the  same. 

I  will  now  examine  the  American  decision  on  this  subject;  and, 
first,  in  direct  hostility  with  the  received  doctrines  of  the  British 
courts,  it  has  been  solemnly  adjudged  in  this  court,  and,  I  believe, 
in  every  state  court  of  the  Union,  that,  notwithstanding  the  laws 
of  bankruptcy  in  England,  a  creditor  of  the  bankrupt  may  levy 
an  attachment  on  a  debt  due  the  bankrupt  in  this  country-,  and 
appropriate  the  proceeds  to  his  own  debt.  .  .  .  [Here  follows 
a  consideration  of  the  cases  of  Harrison  v,  Sterry,  5  Cranch,  289; 
Baker  v.  Wheaton,  5  Mass.,  509;  Watson  v.  Bourne,  10  Mass.,  337; 
Assignees  of  Topham  v.  Chapman,  1  Const.  Eep.  (S.  C),  283, 
and  PhilUps  v.  Hunter,  2  H.  Black.,  402.1 

I  think  it,  then,  fully  established,  that  in  the  United  States  a 
creditor  of  the  foreign  bankrupt  may  attach  the  debt  due  the  for- 
eign bankrupt,  and  apply  the  money  to  the  satisfaction  of  his  pe- 
culiar debt,  to  the  prejudice  of  the  rights  of  the  assignees  or  other 
creditors. 

I  do  not  here  speak  of  assignees,  or  rights  created,  under  the 
bankrupt's  own  deed;  those  stand  on  a  different  ground,  and  do 
not  affect  this  question.  I  confine  myself  to  assignments,  or  trans- 
fers, resting  on  the  operation  of  the  laws  of  the  country,  independ- 


OGDEN  V.  SAUNDERS.  447 

ent  of  the  bankrupt's  deed;  to  the  rights  and  liabilities  of  debtor, 
creditor,  bankrupt,  and  assignees,  as  created  by  law. 

What  is  the  actual  bearing  of  this  right  to  attach,  so  generally 
recognized  by  our  decisions? 

It  imports  a  general  abandonment  of  the  British  principles;  for, 
according  to  their  laws,  the  assignee  alone  has  the  power  to  release 
the  debtor.  But  the  right  to  attach  necessarily  implies  the  right 
to  release  the  debtor,  and  that  right  is  here  a.sserted  under  the  laws 
of  a  State  which  is  not  the  State  of  the  contract. 

So,  also,  the  creditor  of  the  bankrupt  is,  by  the  laws  of  his 
country,  entitled  to  no  more  than  a  ratable  participation  in  the 
bankrupt's  effects.  But  the  right  to  attach  imports  a  right  to  ex- 
clusive satisfaction,  if  the  effects  so  attached  should  prove  adequate 
to  make  satisfaction. 

The  right  to  attach  also  imports  the  right  to  sue  the  bankrupt; 
and  who  would  impute  to  the  bankrupt  law  of  another  country, 
the  power  to  restrain  the  citizens  of  these  States  in  the  exercise  of 
their  right  to  go  into  the  tribunals  of  their  own  country  for  the 
recovery  of  debts,  wherever  they  may  have  originated?  Yet,  uni- 
versally, after  the  law  takes  the  bankrupt  into  its  own  hands,  his 
creditors  are  prohibited  from  suing. 

Thus  much  for  the  law  of  this  case  in  an  international  view.  I 
will  consider  it  with  reference  to  the  provisions  of  the  constitution. 

I  have  said  above,  that  I  had  no  doubt  the  erection  of  a  distinct 
tribunal  for  the  resort  of  citizens  of  other  States,  was  introduced 
ex  industria,  into  the  constitution,  to  prevent,  among  other  evils, 
the  assertion  of  a  power  over  the  rights  of  the  citizens  of  other 
States,  upon  the  metaphysical  ideas  of  the  British  courts  on  the 
subject  of  jurisdiction  over  contracts.  And  there  was  good  reason 
for  it;  for,  upon  that  principle  it  is,  that  a  power  is  asserted  over 
the  rights  of  creditors  which  involves  a  mere  mockery  of  justice. 

Thus,  in  the  case  of  Burrows  v.  Jamineau  (reported  in  2  Strange, 
and  better  reported  in  Moseley,  1,  and  some  other  books),  the 
creditor,  residing  in  England,  was  cited,  probably,  by  a  placard  on 
a  door-post  in  Leghorn,  to  appear  there  to  answer  to  his  debtor; 
and  his  debt  passed  upon  by  the  court,  perhaps,  without  his  having 
ever  heard  of  the  institution  of  legal  process  to  destroy  it. 

The  Scotch,  if  I  remember  correctly,  attach  the  summons  on  the 
flagstaff,  or  in  the  market-place,  at  the  shore  of  Leith;  and  the 
civil  law  process  by  proclamation,  or  viis  et  modis,  is  not  much 
better,  as  the  means  of  subjecting  the  rights  of  foreign  creditors  to 
their  tribunals. 

All  this  mockery  of  justice,  and  the  jealousies,  recriminations, 


448  CASES    ON    CONSTITUTIONAL    LAW. 

and  perhaps  retaliations  which  might  grow  out  of  it  are  avoided, 
if  the  power  of  the  States  over  contracts,  after  they  become  the 
subject  exclusively  of  judicial  cognizance,  is  limited  to  the  con- 
troversies of  their  own  citizens. 

And  it  does  appear  to  me  almost  incontrovertible,  that  the 
States  cannot  proceed  one  step  further  without  exercising  a  power 
incompatible  with  the  acknowledged  powers  of  other  States,  or  of 
the  United  States,  and  with  the  rights  of  the  citizens  of  other 
States. 

Every  bankrupt  or  insolvent  system  in  the  world  must  partake 
of  the  character  of  a  judicial  investigation.  Parties  whose  rights 
are  to  be  affected,  are  entitled  to  a  hearing.  Hence  every  system, 
in  common  with  the  particular  system  now  before  us,  professes  to 
summon  the  creditors  before  some  tribunal,  to  show  cause  against 
granting  a  discharge  to  the  bankrupt. 

But  on  what  principle  can  a  citizen  of  another  State  be  forced 
into  the  courts  of  a  State  for  this  investigation?  The  judgment  to 
be  passed  is  to  prostrate  his  rights;  and  on  the  subject  of  these 
rights  the  constitution  exempts  him  from  the  jurisdiction  of  the 
state  tribunals,  without  regard  to  the  place  where  the  contract  may 
originate.  In  the  only  tribunal  to  which  he  owes  allegiance,  the 
State  insolvent  or  bankrupt  "laws  cannot  be  carried  into  effect; 
they  have  a  law  of  their  own  on  the  subject;*  and  a  certificate  of 
discharge  under  any  other  law  would  not  be  acknowledged  as  valid 
even  in  the  courts  of  the  State  in  which  the  court  of  the  United 
States  that  grants  it  is  held.  Where  is  the  reciprocity?  Where 
the  reason  upon  which  the  state  courts  can  thus  exercise  a  power 
over  the  suitors  of  that  court,  when  that  court  possesses  no  such 
power  over  the  suitors  of  the  state  courts? 

In  fact,  the  constitution  takes  away  the  only  ground  upon  which 
this  eminent  dominion  over  particular  contracts  can  be  claimed, 
which  is  that  of  sovereignty.  For  the  constitutional  suitors  in  the 
courts  of  the  United  States  are  not  only  exempted  from  the  neces- 
sity of  resorting  to  the  state  tribunals,  but  actually  cannot  be  forced 
into  them.  If,  then,  the  law  of  the  English  courts  had  ever  been 
practically  adopted  in  this  country  in  the  state  tribunals,  the  con- 
stitution has  produced  such  a  radical  modification  of  state  power 
over  even  their  own  contracts,  in  the  hands  of  individuals  not 
subject  to  their  jurisdiction,  as  to  furnish  ground  for  excepting  the 
rights  of  such  individuals  from  the  power  which  the  States  un- 
questionably possess  over  their  own  contracts,  and  their  own 
citizens. 

1  2  Stats,  at  Large, 


OGDEN  V.  SAUNDERS.  449 

Follow  out  the  contrary  doctrine  in  its  consequences,  and  see 
the  absurdity  it  will  produce. 

The  constitution  has  constituted  courts  professedly  independent 
of  state  power  in  their  judicial  course;  and  yet  the  Judgments  of 
those  courts  are  to  be  vacated,  and  their  prisoners  set  at  large, 
under  the  power  of  the  state  courts,  or  of  the  state  laws,  without 
the  possibility  of  protecting  themselves  from  its  exercise. 

I  cannot  acquiesce  in  an  incompatibility  so  obvious. 

No  one  has  ever  imagined  that  a  prisoner  in  confinement,  under 
process  from  the  courts  of  the  United  States,  could  avail  himself 
of  the  insolvent  laws  of  the  State  in  which  the  court  sits.  And 
the  reason  is,  that  those  laws  are  municipal  and  peculiar,  and  ap- 
pertaining exclusively  to  the  exercise  of  state  power  in  that  sphere 
in  which  it  is  sovereign,  that  is,  between  its  own  citizens,  between 
suitors  subjected  to  state  power  exclusively,  in  their  controversies 
between  themselves. 

In  the  courts  of  the  United  States,  no  higher  power  is  asserted 
than  that  of  discharging  the  individual  in  confinement  under  its 
own  process.  This  affects  not  to  interfere  with  the  rights  of  cred- 
itors in  the  state  courts,  against  the  same  individual.  Perfect  reci- 
procity would  seem  to  indicate  that  no  greater  power  should  be 
exercised  under  state  authority  over  the  rights  of  suitors  who 
belong  to  the  United  States  jurisdiction.  Even  although  the  prin- 
ciple asserted  in  the  British  courts,  of  supreme  and  exclusive  power 
over  their  contracts,  had  obtained  in  the  courts  of  the  United 
States,  I  must  think  that  power  has  undergone  a  radical  modifi- 
cation by  the  judicial  powers  granted  to  the  United  States. 

I,  therefore,  consider  the  discharge,  under  a  state  law,  as  incom- 
petent to  discharge  a  debt  due  a  citizen  of  another  State;  and  it 
follows  that  the  plea  of  a  discharge  here  set  up,  is  insufficient  to 
bar  the  rights  of  the  plaintiff. 

It  becomes  necessary,  therefore,  to  consider  the  other  errors 
assigned  in  behalf  of  the  defendant;  and,  first,  as  to  the  plea  of 
the  act  of  limitations. 

The  statute  pleaded  here  is  not  the  act  of  Louisiana,  but  that 
of  New  York;  and  the  question  is  not  raised  by  the  facts  or  aver- 
ments, whether  he  could  avail  himself  of  that  law  if  the  full  time 
had  run  out  before  his  departure  from  New  York,  as  was  supposed 
in  argument.  The  plea  is  obviously  founded  on  the  idea  that  the 
statute  of  the  State  of  the  contract  was  generally  pleadable  in  any 
other  State,  a  doctrine  that  will  not  bear  argument. 

The  remaining  error  assigned  has  regard  to  the  sum  for  which 
the  judgment  is  entered,  it  being  for  a  greater  amount  than  the 
29 


450  CASES    ON    CONSTITUTIONAL    LAW 

nominal  amount  of  the  bills  of  exchange  on  which  the  suit  was 
brought,  and  which  are  found  by  the  verdict. 

There  has  been  a  defect  of  explanation  on  this  subject;  but  from 
the  best  information  afforded  us,  we  consider  the  amount  for  which 
judgment  is  entered,  as  made  up  of  principal,  interest,  and  dam- 
ages, and  the  latter  as  being  legally  incident  to  the  finding  of  the 
bills  of  exchange,  and  their  non-payment,  and  assessed  by  the 
court  under  a  local  practice  consonant  with  that  by  which  the 
amount  of  written  contracts  is  determined,  by  reference  to  the 
prothonotary,  in  many  other  of  our  courts.  We,  therefore,  see 
no  error  in  it.    The  judgment  below  will,  therefore,  be  affirmed. 

And  the  purport  of  this  adjudication,  as  I  understand  it,  is,  that 
as  between  citizens  of  the  same  State,  a  discharge  of  a  bankrupt 
by  the  laws  of  that  State  is  valid  as  it  affects  posterior  contracts; 
that  as  against  creditors,  citizens  of  other  States,  it  is  invalid  as  to 
all  contracts. 

The  propositions  which  I  have  endeavored  to  maintain  in  the 
opinion  which  I  have  delivered  are  these: — 

1.  That  the  power  given  to  the  United  States  to  pass  bankrupt 
laws  is  not  exclusive. 

2.  That  the  fair  and  ordinary  exercise  of  that  power  by  the 
States  does  not  necessarily  involve  a  violation  of  the  obligation 
of  contracts,  multi  fortiori  of  posterior  contracts. 

3.  But  when,  in  the  exercise  of  that  power,  the  States  pass 
beyond  their  own  limits,  and  the  rights  of  their  own  citizens,  and 
act  upon  the  rights  of  citizens  of  other  States,  there  arises  a  con- 
flict of  sovereign  power,  and  a  collision  with  the  judicial  powers 
granted  to  the  United  States,  which  renders  the  exercise  of  such 
a  power  incompatible  with  the  rights  of  other  States,  and  with 
the  constitution  of  the  United  States. 

Me.  Justice  Washington,  Mb.  Justice  Thompson,  and  Me. 
Justice  Tbimble  dissented. 

Me.  Chief  Justice  Mabshall,  Me.  Justice  Duvall,  and  Me. 
Justice  Stoet,  assented  to  the  judgment,  which  was  entered  for 
the  defendant  in  error.  Judgment  affirmed. 


CHARLES    RIVER    BRIDGE   V.    WARREN    BRIDGE.  451 

THE  PEOPRIETOES  OF  THE  CHARLES  RIVER  BRIDGE 

V.  THE  PROPRIETORS  OF  THE  WARREN 

BRIDGE  ET  AL. 

11  Peters,  420.    Decided  1837. 

Error  to  the  supreme  Judicial  court  of  the  commonwealth  of 
Massachusetts.  The  material  facts  and  the  nature  of  the  case 
appear  in  the  opinion  of  the  court.     .     .     . 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

The  questions  involved  in  this  case  are  of  the  gravest  char- 
acter, and  the  court  have  given  to  them  the  most  anxious  and 
deliberate  consideration.  The  value  of  the  right  claimed  by  the 
plaintiffs  is  large  in  amount;  and  many  persons  may  no  doubt 
be  seriously  affected  in  their  pecuniary  interests  by  any  decisions 
which  the  court  may  pronounce;  and  the  questions  which  have 
been  raised  as  to  the  power  of  the  several  States,  in  relation  to 
the  corporations  they  have  chartered,  are  pregnant  with  impor- 
tant consequences;  not  only  to  the  individuals  who  are  concerned 
in  the  corporate  franchises,  but  to  the  communities  in  which  they 
exist.  The  court  are  fully  sensible  that  it  is  their  duty,  in  exer- 
cising the  high  powers  conferred  on  them  by  the  constitution  of 
the  United  States,  to  deal  with  these  great  and  extensive  interests 
with  the  utmost  caution;  guarding,  as  far  as  they  have  the  power 
to  do  so,  the  rights  of  property,  and  at  the  same  time  carefully  ab- 
staining from  any  encroachment  on  the  rights  reserved  to  the 
States. 

It  appears,  from  the  record,  that  in  the  year  1650,  the  legisla- 
ture of  Massachusetts  granted  to  the  president  of  Harvard  College 
"the  liberty  and  power"  to  dispose  of  the  ferry  from  Charlestown 
to  Boston,  by  lease  or  otherwise,  in  the  behalf  and  for  the  behoof 
of  the  college;  and  that,  under  that  grant,  the  college  continued 
to  hold  and  keep  the  ferry  by  its  lessees  or  agents,  and  to  receive 
the  profits  of  it,  until  1785.  In  the  last-mentioned  year,  a  peti- 
tion was  presented  to  the  legislature,  by  Thomas  Russell  and  others, 
stating  the  inconvenience  of  the  transportation  by  ferries,  over 
Charles  River,  and  the  public  advantages  that  would  result  from 
a  bridge;  and  praying  to  be  incorporated  for  the  purpose  of  erect- 
ing a  bridge  in  the  place  where  the  ferry  between  Boston  and 
Charlestown  was  then  kept.  Pursuant  to  this  petition,  the  legis- 
lature, on  the  9th  of  March,  1785,  passed  an  act  incorporating  a 


452  CASES    ON    CONSTITUTIONAL    LAW. 

company,  by  the  name  of  "The  Proprietors  of  the  Charles  Eiver 
Bridge,"  for  the  purposes  mentioned  in  the  petition.  Under  this 
charter  the  company  were  empowered  to  erect  a  bridge,  in  "the 
place  where  the  ferry  was  then  kept;"  certain  tolls  were  granted, 
and  the  charter  was  limited  to  forty  years,  from  the  first  opening  of 
the  bridge  for  passengers;  and  from  the  time  the  toll  commenced, 
until  the  expiration  of  this  term,  the  company  were  to  pay  two 
hundred  pounds,  annually,  to  Harvard  College;  and  at  the  expira- 
tion of  the  forty  years  the  bridge  was  to  be  the  property  of  the 
commonwealth;  "saving  (as  the  law  expresses  it),  to  the  said  col- 
lege or  university,  a  reasonable  annual  compensation,  for  the  an- 
nual income  of  the  ferry,  which  they  might  have  received  had 
not  the  said  bridge  been  erected." 

The  bridge  was  accordingly  built,  and  was  opened  for  passen- 
gers on  the  17th  of  June,  1786.  In  1793,  the  charter  was  extended 
to  seventy  years,  from  the  opening  of  the  bridge;  and  at  the  ex- 
piration of  that  time  it  was  to  belong  to  the  commonwealth.  The 
corporation  have  regularly  paid  to  the  college  the  annual  sum 
of  two  hundred  pounds,  and  have  performed  all  of  the  duties 
imposed  on  them  by  the  terms  of  their  charter. 

In  1828,  the  legislature  of  Massachusetts  incorporated  a  com- 
pany by  the  name  of  "The  Proprietors  of  the  Warren  Bridge," 
for  the  purpose  of  erecting  another  bridge  over  Charles  Eiver.  This 
bridge  is  only  sixteen  rods,  at  its  commencement,  on  the  Charles- 
town  side,  from  the  commencement  of  the  bridge  of  the  plaintiffs; 
and  they  are  about  fifty  rods  apart  at  their  termination  on  the 
Boston  side.  The  travelers  who  pass  over  either  bridge,  proceed 
from  Charlestown  square,  which  receives  the  travel  of  many  great 
public  roads  leading  from  the  country;  and  the  passengers  and 
travellers  who  go  to  and  from  Boston  used  to  pass  over  the  Charles 
Eiver  Bridge,  from  and  through  this  square,  before  the  erection 
of  the  Warren  Bridge. 

The  Warren  Bridge,  by  the  terms  of  its  charter,  was  to  be  sur- 
rendered to  the  State,  as  soon  as  the  expenses  of  the  proprietors 
in  building  and  supporting  it  should  be  reimbursed;  but  this 
period  was  not,  in  any  event,  to  exceed  six  years  from  the  time 
the  company  commenced  receiving  toll. 

When  the  original  bill  in  this  ease  was  filed,  the  Warren  Bridge 
had  not  been  built;  and  the  bill  was  filed  after  the  passage  of 
the  law,  in  order  to  obtain  an  injunction  to  prevent  its  erection, 
and  for  general  relief.  The  bill,  among  other  things,  charged, 
as  a  ground  for  relief,  that  the  act  for  the  erection  of  the  Warren 
Bridge  impaired  the  obligation  of  the  contract  between  the  com- 


CHARLES    RIVER    BRIDGE    v.    WARREN    BRIDGE.  453 

manwealth  and  the  proprietors  of  the  Charles  Kiver  Bridge;  and 
was  therefore  repugnant  to  the  constitution  of  the  United  States. 
Afterwards,  a  supplemental  bill  was  filed,  stating  that  the  bridge 
had  then  been  so  far  completed,  that  it  had  been  opened  for 
travel,  and  that  divers  persons  had  passed  over,  and  thus  avoided 
the  payment  of  the  toll,  which  would  otherwise  have  been  received 
by  the  plaintiffs.  The  answer  to  the  supplemental  bill  admitted 
that  the  bridge  had  been  so  far  completed  that  foot  passengers 
could  pass;  but  denied  that  any  persons  but  the  workmen  and 
the  superintendents  had  passed  over  with  their  consent.  In  this 
state  of  the  pleadings,  the  cause  came  on  for  hearing  in  the 
supreme  judicial  court  for  the  county  of  Suffolk,  in  the  common- 
wealth of  Massachusetts,  at  November  term,  1829;  and  the  court 
decided  that  the  act  incorporating  the  Warren  Bridge  did  not 
impair  the  obligation  of  the  contract  with  the  proprietors  of  the 
Charles  River  Bridge,  and  dismissed  the  complainants'  bill:  and 
the  case  is  brought  here  by  writ  of  error  from  that  decision.  It 
is,  however,  proper  to  state,  that  it  is  understood  that  the  state 
court  was  equally  divided  upon  the  question;  and  that  the  decree 
dismissing  the  bill  upon  the  ground  above  stated,  was  pronounced 
by  a  majority  of  the  court,  for  the  purpose  of  enabling  the  com- 
plainants to  bring  the  question  for  decision  before  this  court. 

In  the  argument  here,  it  was  admitted,  that  since  the  filing  of 
the  supplemental  bill,  a  sufficient  amount  of  toll  had  been  received 
by  the  proprietors  of  the  Warren  Bridge  to  reimburse  all  their 
expenses,  and  that  the  bridge  is  now  the  property  of  the  State,  and 
has  been  made  a  free  bridge;  and  that  the  value  of  the  franchise 
granted  to  the  proprietors  of  the  Charles  Eiver  Bridge  has  by 
this  means  been  entirely  destroyed. 

If  the  complainants  deemed  these  facts  material,  they  ought  to 
have  been  brought  before  the  state  court,  by  a  supplemental  bill; 
and  this  court,  in  pronouncing  its  judgment,  cannot  regularly 
notice  them.  But  in  the  view  which  the  court  take  of  this  sub- 
ject, these  additional  circumstances  would  not  in  any  degree  influ- 
ence their  decision.  And  as  they  are  conceded  to  be  true,  and  the 
case  has  been  argued  on  that  ground,  and  the  controversy  has  been 
for  a  long  time  depending,  and  all  parties  desire  a  final  end  of  it; 
and  as  it  is  of  importance  to  them,  that  the  principles  on  which 
this  court  decide  should  not  be  misunderstood,  the  case  will  be 
treated. in  the  opinion  now  delivered,  as  if  these  admitted  facts 
were  regularly  before  us. 

A  good  deal  of  evidence  has  been  offered  to  show  the  nature 
and  extent  of  the  ferry  right  granted  to  the  college;   and  also  to 


454  CASES    ON    CONSTITUTIONAL    LAW. 

show  the  rights  claimed  by  the  proprietors  of  the  bridge  at  dif- 
ferent times,  by  virtue  of  their  charter;  and  the  opinions  enter- 
tained by  committees  of  the  legislature,  and  others,  upon  that 
subject.  But  as  these  circumstances  do  not  affect  the  judgment 
of  this  court,  it  is  unnecessary  to  recapitulate  them. 
.  The  plaintiffs  in  error  insist,  mainly,  upon  two  grounds: 
1.  That  by  virtue  of  the  grant  of  1650,  Harvard  College  was 
entitled,  in  perpetuity,  to  the  right  of  keeping  a  ferry  between 
Charlestown  and  Boston;  that  this  right  was  exclusive;  and  that 
the  legislature  had  not  the  power  to  establish  another  ferry  on  the 
same  line  of  travel,  because  it  would  infringe  the  rights  of  the 
college;  and  that  these  rights,  upon  the  erection  of  the  bridge  in 
the  place  of  the  ferry,  under  the  charter  of  1785,  were  transferred 
to,  and  became  vested  in  "the  proprietors  of  the  Charles  Eiver 
Bridge;"  and  that  under,  and  by  virtue  of  this  transfer  of  the 
ferry  right,  the  rights  of  the  bridge  company  were  as  exclusive 
in  that  line  of  travel,  as  the  rights  of  the  ferry.  2.  That  inde- 
pendently of  the  ferry  right,  the  acts  of  the  legislature  of  Massa- 
chusetts of  1785  and  1792,  by  their  true  construction,  necessarily 
implied  that  the  legislature  would  not  authorize  another  bridge, 
and  especially  a  free  one,  by  the  side  of  this,  and  placed  in  the 
same  line  of  travel,  whereby  the  franchise  granted  to  the  ''pro- 
prietors of  the  Charles  River  Bridge"  should  be  rendered  of  no 
value;  and  the  plaintiffs  in  error  contend,  that  the  grant  of  Jhe 
ferry  to  the  college_,  and  of  the  charter  to  the  proprietors  of  the 
bridge,  are  both  contracts  on  the  part  of  the  State;  and  that  the 
law  authorizing  the  erection  of  the  Warren  Bridge  in  1828  impairs 
the  obligation  of  one  or  both  of  these  contracts. 

It  is  very  clear,  that  in  the  form  in  which  this  case  comes  before 
us,  being  a  writ  of  error  to  a  state  court,  the  plaintiffs,  in  claim- 
ing under  either  of  these  rights,  must  place  themselves  on  the 
ground  of  contract,  and  cannot  support  themselves  upon  the  prin- 
ciple that  the  law  divests  vested  rights.  It  is  well  settled  by  the 
decisions  of  this  court,  that  a  state  law  may  be  retrospective  in  its 
character,  and  may  divest  vested  rights,  and  yet  not  violate  the 
constitution  of  the  United  States,  unless  it  also  impairs  the  obli- 
gation of  a  contract.  In  2  Peters,  413,  Satterlee  v.  Matthewson, 
this  court,  in  speaking  of  the  state  law  then  before  them,  and  inter- 
preting the  article  in  the  constitution  of  the  United  States  which 
forbids  the  States  to  pass  laws  impairing  the  obligation  of  con- 
tracts, uses  the  following  language:  "It  (the  state  law)  is  said  to 
be  retrospective;  be  it  so.  But  retrospective^lajss .  S'hich  do 
not  impair  the  obligation  of  coniracts,  or  partake  of  the  character 


CHARLES    RIVER    BRIDGE    v.    WARREN    BRIDGE.  455 

of  ex  post  facto  laws,  are  not  condemned  or  forbidden  by  any  part 
of  that  instrument"  (the  constitution  of  the  United  States).  And 
in  another  passage  in  the  same  case,  the  court  say:  "The  objec- 
tion, however,  most  pressed  upon  the  court,  and  relied  upon  by 
the  counsel  for  the  plaintiff  in  error,  was,  that  the  effect  of  this 
act  was  to  divest  rights  which  were  vested  by  law  in  Satterlee. 
There  is  certainly  no  part  of  the  constitution  of  the  United  States 
which  applies  to  a  state  law  of  this  description;  nor  are  we  aware 
of  any  decision  of  this,  or  of  any  circuit  court,  which  has  con- 
demned such  a  law  upon  this  ground,  provided  its  effect  be  not 
to  impair  the  obligation  of  a  contract."  The  same  principles  were 
reaffirmed  in  this  court,  in  the  late  case  of  Watson  and  others  v. 
Mercer,  decided  in  1834,  8  Pet.,  110:  "As  to  the  first  point  (say 
the  court),  it  is  clear  that  this  court  has  no  right  to  pronounce 
an  act  of  the  state  legislature  void,  as  contrary  to  the  constitution 
of  the  United  States,  from  the  mere  fact  that  it  divests  antecedent 
vested  rights  of  property.  The  constitution  of  the  United  States 
does  not  prohibit  the  States  from  passing  retrospective  laws  gen- 
erally, but  "only  ex  post  facto  laws." 

After  these  solemn  decisions  of  this  court,  it  is  apparent  that 
the  plaintiffs  in  error  cannot  sustain  themselves  here,  either  upon 
the  ferry  right,  or  the  charter  to  the  bridge,  upon  the  ground 
that  vested  rights  of  property  have  been  divested  by  the  legisla- 
ture. And  whether  they  claim  under  the  ferry  right,  or  the  char- 
ter to  the  bridge,  they  must  show  that  the  title  which  they  claim, 
was  acquired  by  contract,  and  that  the  terms  of  that  contract  have 
been  violated  by  the  charter  to  the  Warren  Bridge.  In  other 
words,  they -nmat  show  that  the.  State  had  entered  into  a  contract 
with  them, ,  or  those  under  whom  they  claim,  not  to  establish  a 
free  bridge  at  the  place  where  the  Warren  Bridge  is  erected.  Such, 
and  such  only,  are  the  principles  upon  which  the  plaintiffs  in  error 
can  claim  relief  in  this  case. 

The  nature  and  extent  of  the  ferry  right  granted  to  Harvard 
College,  in  1650,  must  depend  upon  the  laws  of  Massachusetts; 
and  the  character  and  extent  of  this  right  has  been  elaborately 
discussed  at  the  bar.  But  in  the  view  which  the  court  take  of  the 
case  before  them,  it  is  not  necessary  to  express  any  opinion  on 
these  questions.  For  assuming  that  the  grant  to  Harvard  College, 
and  the  charter  to  the  bridge  company,  were  both  contracts,  and 
that  the  ferry  right  was  as  extensive  and  exclusive  as  the  plain- 
tiffs contend  for;  still  they  cannot  enlarge  the  privileges  granted  to 
the  bridge,  unless  it  can  be  shown,  that  the  rights  of  Harvard 
College  in  this  ferry  have,  by  assignment,  or  in  some  other  way, 


456  CASES    ON    CONSTITUTIONAL    LAW. 

been  transferred  to  the  proprietors  of  the  Charles  River  Bridge, 
and  still  remain  in  existence,  vested  in  them,  to  the  same  extent 
with  that  in  which  they  were  held  and  enjoyed  by  the  college 
before  the  bridge  was  built.  .  .  .  [The  court  holds  that  this 
cannot  be  shown.] 

It  is  however  said,  that  the  payment  of  the  £200  a  year  to  the 
college,  as  provided  for  in  the  law,  gives  to  the  proprietors  of  the 
bridge  an  equitable  claim  to  be  treated  as  the  assignees  of  their 
interest;  and  by  substitution,  upon  chancery  principles,  to  be 
clothed  with'  all  their  rights. 

The  answer  to  this  argument  is  obvious.  This  annual  sum  was 
intended  to  be  paid  out  of  the  proceeds  of  the  tolls  which  the 
company  were  authorized  to  collect.  The  amount  of  the  tolls, 
it  must  be  assumed,  was  graduated  with  a  view  to  this  encum- 
brance, as  well  as  to  every  other  expenditure  to  which  the  com- 
pany might  be  subjected,  under  the  provisions  of  their  charter. 
The  tolls  were  to  be  collected  from  the  public,  and  it  was  intended 
that  the  expense  of  the  annuity  to  Harvard  College  should  be 
borne  by  the  public;  and  it  is  manifest  that  it  was  so  borne,  from 
the  amount  which  it  is  admitted  they  received,  until  the  Warren 
Bridge  was  erected.  Their  agreement,  therefore,  to  pay  that  sum 
can  give  no  equitable  right  to  be  regarded  as  the  assignees  of  the 
college,  and  certainly  can  furnish  no  foundation  for  presuming 
a  conveyance;  and  as  the  proprietors  of  the  bridge  are  neither 
the  legal  nor  equitable  assignees  of  the  college,  it  is  not  easy  to  per- 
ceive how  the  ferry  franchise  can  be  invoked  in  aid  of  their  claims, 
if  it  were  even  still  a  subsisting  privilege;  and  had  not  been  re- 
sumed by  the  State,  for  the  purpose  of  building  a  bridge  in  its 
place. 

Neither  can  the  extent  of  the  pre-existing  ferry  right,  whatever 
it  may  have  been,  have  any  influence  upon  the  construction  of  the 
written  charter  for  the  bridge.  It  does  not,  by  any  means,  follow, 
that  because  the  legislative  power  in  Massachusetts,  in  1650,  may 
have  granted  to  a  Justly  favored  seminary  of  learning  the  exclusive 
right  of  ferry  between  Boston  and  Charlestown,  they  would,  in 
1785,  give  the  same  extensive  privilege  to  another  corporation, 
who  were  about  to  erect  a  bridge  in  the  same  phce.  The  fact  that 
such  a  right  was  granted  to  the  college  cannot,  by  any  sound 
rule  of  construction,  be  used  to  extend  the  privileges  of  the  bridge 
company  beyond  what  the  words  of  the  charter  naturally  and  legally 
import.  Increased  population  longer  experienced  in  legislation, 
the  different  character  of  the  corporation  which  owned  the  ferry 
from  that  which  owned  the  bridge,  might  well  have  induced  a 


CHARLES    RIVER    BRIDGE   v.    WARREN    BRIDGE.  457 

change  in  the  policy  of  the  State  in  this  respect;  and  as  the 
franchise  of  the  ferry,  and  that  of  the  bridge,  are  different  in 
their  nature,  and  were  each  established  by  separate  grants,  which 
have  no  words  to  connect  the  privileges  of  the  one  with  the  privi- 
leges of  the  other,  there  is  no  rule  of  legal  interpretation  which 
would  authorize  th€  court  to  associate  these  grants  together,  and 
to  infer  that  any  privilege  was  intended  to  be  given  to  the  bridge 
company,  merely  because  it  had  been  confererd  on  the  ferry.  The 
charter  to  the  bridge  is  a  written  instrument  which  must  speak 
for  itself,  and  be  interpreted  by  its  own  terms. 

This  brings  us  to  the  act  of  the  legislature  of  Massachusetts, 
of  1785,  by  which  the  plaintiffs  were  incorporated  by  the  name 
of  "The  Proprietors  of  the  Charles  Eiver  Bridge;"  and  it  is  here, 
and  in  the  law  of  1792,  prolonging  their  charter,  that  we  must  look 
for  the  extent  and  nature  of  the  franchise  conferred  upon  the 
plaintiffs. 

Much  has  been  said  in  the  argument  of  the  principles  of  con- 
struction by  which  this  law  is  to  be  expounded,  and  what  under- 
takings, on  the  part  of  the  State,  may  be  implied.  The  court 
think  there  can  be  no  serious  difficulty  on  that  head.  It  is  the 
grant  of  certain  franchises  by  the  public  to  a  private  corporation, 
and  in  a  matter  where  the  public  interest  is  concerned.  The  rule 
of  construction  in  such  cases  is  well  settled,  both  in  England  and 
by  the  decisions  of  our  own  tribunals.  In  2  Barn.  &  Adol.,  793, 
in  the  case  of  the  proprietors  of  the  Stourbridge  Canal  v. 
\ATieeley  and  others,  the  court  say,  "The  canal  having  been  made 
under  an  act  of  parliament,  the  rights  of  the  plaintiffs  are  derived 
entirely  from  that  act.  This,  like  many  other  cases,  is  a  bargain 
between  a  company  of  adventurers  and  the  public,  the  terms  of 
which  are  expressed  in  the  statute;  and  the  rule  of  construction, 
in  all  such  cases,  is  now  fully  established  to  be  this;  that  any 
ambiguity  in  the  terms  of  the  contract  must  operate  against  the 
adventurers,  and  in  favor  of  the  public,  and  the  plaintiffs  can  claim 
nothing  that  is  not  clearly  given  them  by  the  act."  And  the  doc- 
trine thus  laid  down  is  abundantly  sustained  by  the  authorities 
referred  to  in  this  decision.  The  case  itself  was  as  strong  a  one 
as  could  well  be  imagined  for  giving  to  the  canal  company,  by 
implication,  a  right  to  the  tolls  they  demanded.  Their  canal  had 
been  used  by  the  defendants,  to  a  very  considerable  extent,  in 
transporting  large  quantities  of  coal.  The  rights  of  all  persons 
to  navigate  the  canal  were  expressly  secured  by  the  act  of  parlia- 
ment; so  that  the  company  could  not  prevent  them  from  using 
it,  and  the  toll  demanded  was  admitted  to  be  reasonable.     Yet, 


458  CASES    ON    CONSTITUTIONAL    LAW. 

as  they  only  used  one  of  the  levels  of  the  canal,  and  did  not  pass 
through  the  locks;  and  the  statute,  in  giving  the  right  to  exact 
toll,  had  given  it  for  articles  which  passed  "through  any  one  or 
more  of  the  locks,"  and  had  said  nothing  as  to  toll  for  navigating 
one  of  the  levels;  the  court  held  that  the  right  to  demand  toll,  in 
the  latter  case,  could  not  be  implied,  and  that  the  company  were 
not  entitled  to  recover  it.  This  was  a  fair  case  for  an  equitable 
construction  of  the  act  of  incorporation,  and  for  an  implied  grant; 
if  such  a  rule  of  construction  could  ever  be  permitted  in  a  law  of 
that  description.  For  the  canal  had  been  made  at  the  expense 
of  the  company;  the  defendants  had  availed  themselves  of  the 
fruits  of  their  labors,  and  used  the  canal  freely  and  extensively 
for  their  own  profit.  Still  the  right  to  exact  toll  could  not  be 
implied,  because  such  a  privilege  was  not  found  in  the  charter. 

Borrowing,  as  we  have  done,  our  system  of  jurisprudence  from 
the  English  law;  and  having  adopted,  in  every  other  case,  civil 
and  criminal,  its  rules  for  the  construction  of  statutes;  is  there 
anything  in  our  local  situation,  or  in  the  nature  of  our  political 
institutions,  which  should  lead,  us  to  depart  from  the  principle 
where  corporations  are  concerned?  Are  we  to  apply  to  acts  of 
incorporation  a  rule  of  construction  differing  from  that  of  the  Eng- 
lish law,  and,  by  implication,  make  the  terms  of  a  charter  in  one 
of  the  States,  more  unfavorable  to  the  public,  than  upon  an  act  of 
parliament,  framed  in  the  saipe  words,  would  be  sanctioned  in  an 
English  court?  Can  any  good  reason  be  assigned  for  excepting 
this  particular  class  of  cases  from  the  operation  of  the  general 
principle,  and  for  introducing  a  new  and  adverse  rule  of  construc- 
tion in  favor  of  corporations,  while  we  adopt  and  adhere  to  the 
rules  of  construction  known  to  the  English  common  law,  in  every 
other  case,  without  exception?  We  think  not;  and  it  would  presept 
a  singular  spectacle,  if,  while  the  courts  in  England  are  restrain- 
ing, within  the  strictest  limits,  the  spirit  of  monopoly,  and  exclu- 
sive privileges  in  nature  of  monopolies,  and  confining  corporations 
to  the  privileges  plainly  given  to  them  in  their  charter,  the  courts 
of  this  country  should  be  found  enlarging  these  privileges  by 
implication;  and  construing  a  statute  more  unfavorably  to  the 
public,  and  to  the  rights  of  the  community,  than  would  be  done 
in  a  like  case  in  an  English  court  of  justice. 

But  we  are  not  now  left  to  determine,  for  txie  first  time,  the  rules 
by  which  public  grants  are  to  be  construed  in  this  country.  The 
subject  has  already  been  considered  in  this  court;  and  the  rule 
of  construction,  above  stated,  fully  established.       [Here  follow 


CHARLES    RIVER    BRIDGE    v.    WARREN   BRIDGE  459 

citations  to  U.  S.  v.  Arredondo,  6  Pet.,  738;  Jackson  v.  Lam- 
phire,  3  Pet.,  289;  and  Beaty  v.  The  Lessee  of  Knowles,  4  Pet., 
168.] 

But  the  case  most  analogous  to  this,  and  in  which  the  question 
came  more  directly  before  the  court,  is  the  case  of  the  Providence 
Bank  v.  Billings  and  Pittman,  4  Pet.-,  514,  and  which  was  decided 
in  1830.  In  that  case,  it  appeared  that  the  legislature  of  Khode 
Island  had  chartered  the  bank,  in  the  usual  form  of  such  acts 
of  incorporation.  The  charter  contained  no  stipulation  on  the  part 
of  the  State,  that  it  would  not  impose  a  tax  on  the  bank,  nor  any 
reservation  of  the  right  to  do  so.  It  was  silent  on  this  point. 
Afterwards,  a  law  was  passed,  imposing  a  tax  on  all  banks  in  the 
State;  and  the  right  to  impose  this  tax  was  resisted  by  the  Provi- 
dence Bank,  upoh  the  ground  that,  if  the  State  could  impose  a  tax, 
it  might  tax  so  heavily  as  to  render  the  franchise  of  no  value, 
and  destroy  the  institution;  that  the  charter  was  a  contract,  and 
that  a  power  which  may  in  effect  destroy  the  charter  is  inconsistent 
with  it,  and  is  impliedly  renounced  by  granting  it.  But  the  court 
said  that  the  taxing  power  was  of  vital  importance,  and  essential 
to  the  existence  of  government;  and  that  the  relinquishment  of 
such  a  power  is  never  to  be  assumed.  And  in  delivering  the  opin- 
ion of  the  court,  the  late  chief  justice  states  the  principle,  in 
the  following  clear  and  emphatic  language.  Speaking  of  the 
taxing  power,  he  says,  "as  the  whole  community  is  interested  in 
retaining  it  undiminished,  that  community  has  a  right  to  insist 
that  its  abandonment  ought  not  to  be  presumed,  in  a  case  in 
which  the  deliberate  purpose  of  the  State  to  abandon  it  does  not 
appear,"  The  case  now  before  the  court  is,  in  principle,  precisely 
the  same.  It  is  a  charter  from  a  State.  The  act  of  incorpora- 
tion is  silent  in  relation  to  the  contested  power.  The  argu- 
ment in  favor  of  the  proprietors  of  the  Charles  Eiver  Bridge  is 
the  same,  almost  in  words,  with  that  used  by  the  Providence 
Bank;  that  is,  that  the  power  claimed  by  the  State,  if  it  exists, 
may  be  so  used  as  to  destroy  the  value  of  the  franchise  they  have 
granted  to  the  corporation.  The  argument  must  receive  the  same 
answer;  and  the  fact  that  the  power  has  been  already  exercised 
so  as  to  destroy  the  value  of  the  franchise,  cannot  in  any  degree 
affect  the  principle.  The  existence  of  the  power  does  not,  and 
cannot,  depend  upon  the  circumstance  of  its  having  been  exercised 
or  not. 

It  may,  perhaps,  be  said  that  in  the  case  of  the  Providence  Bank, 
this  court  were  speaking  of  the  taxing  power;  which  is  of  vital 
importance  to  the  very  existence  of  every  government.  But  the 
object  and  end  of  all  government  is  to  promote  the  happiness 


460  CASES  ON  CONSTITUTIONAL  LAW. 

and  prosperity  of  the  community  by  which  it  is  established;  and  it 
can  never  be  assumed,  that  the  government  intended  to  diminish 
its  power  of  accomplishing  the  end  for  which  it  was  created.  And 
in  a  country  like  ours,  free,  active,  and  enterprising,  continually 
advancing  in  numbers  and  wealth,  new  channels  of  communica- 
tion are  daily  found  necessary,  both  for  travel  and  trade;  and  are 
essential  to  the  comfort,  convenience,  and  prosperity  of  the  peo- 
ple. A  State  ought  never  to  be  presumed  to  surrender  this  power, 
because,  like  the  taxing  power,  the  whole  community  have  an 
interest  in  preserving  it  undiminished.  And  when  a  corporation 
alleges,  that  a  State  has  surrendered,  for  seventy  years,  its  power 
of  improvement  and  public  accommodation,  in  a  great  and  impor- 
tant line  of  travel,  along  which  a  vast  number  of  its  citizens  must 
daily  pass,  the  community  have  a  right  to  insist,  in  the  language 
of  this  court  above  quoted,  "that  its  abandonment  ought  not  to 
be  presumed  in  a  case  in  which  the  deliberate  purpose  of  the  State 
to  abandon  it  does  not  appear."  The  continued  existence  of  a  gov- 
ernment would  be  of  no  great  value,  if  by  implications  and  pre- 
sumptions it  w'as  disarmed  of  the  powers  necessary  to  accomplish 
the  ends  of  its  creation;  and  the  functions  it  was  designed  to 
perform,  transferred  to  the  hands  of  privileged  corporations.  The 
rule  of  construction  announced  by  the  court  was  not  confined  to 
the  taxing  power;  nor  is  it  so  limited  in  the  opinion  delivered. 
On  the  contrary,  it  was  distinctly  placed  on  the  ground  that  the 
interests  of  the  community  were  concerned  in  preserving,  undi- 
minished, the  power  then  in  question;  and  whenever  any  power 
of  the  State  is  said  to  be  surrendered  or  diminished,  whether  it 
be  the  taxing  power  or  any  other  affecting  Ihe  public  interest,  the 
same  principle  applies,  and  the  rule  of  construction  must  be  the 
same.  No  one  will  question  that  the  interests  of  the  great  body 
of  the  people  of  the  State  would,  in  this  instance,  be  affected  by 
the  surrender  of  this  great  line  of  travel  to  a  single  corporation, 
with  the  right  to  exact  toll,  and  exclude  competition  for  seventy 
years.  While  the  rights  of  private  property  are  sacredly  guarded, 
we  must  not  forget  that  the  community  also  have  rights,  and  that 
the  happiness  and  well-being  of  every  citizen  depends  on  their 
faithful  preservation. 

Adopting  the  rule  of  construction  above  stated  as  the  settled 
one,  we  proceed  to  apply  it  to  the  charter  of  1785  to  the  proprietors 
of  the  Charles  Kiver  Bridge.  This  act  of  incorporation  is  in  the 
usual  form,  and  the  privileges  such  as  are  commonly  given  to  cor- 
porations of  that  kind.  It  confers  on  them  the  ordinary  faculties 
of  a  corporation,  for  the  purpose  of  building  the  bridge;    and 


CHARLES    RIVER    BRIDGE    v.    WARREN    BRIDGE.  461 

establishes  certain  rates  of  toll,  which  the  company  are  author- 
ized to  take.  This  is  the  whole  grant.  There  is  no  exclusive  priv- 
ilege given  to  them  over  the  waters  of  Charles  Eiver  above  or 
below  their  bridge.  No  right  to  erect  another  bridge  themselves, 
nor  to  prevent  other  persons  from  erecting  one.  No  engagement 
from  the  State  that  another  shall  not  be  erected;  and  no  under- 
taking not  to  sanction  competition,  nor  to  make  improvements 
that  may  diminish  the  amount  of  its  income.  Upon  all  these  sub- 
jects the  charter  is  silent;  and  nothing  is  said  in  it  about  a  line 
of  travel,  so  much  insisted  on  in  the  argument,  in  which  they 
are  to  have  exclusive  privileges.  No  words  are  used  from  which  an 
intention  to  grant  any  of  these  rights  can  be  inferred.  If  the 
plaintiff  is  entitled  to  them,  it  must  be  implied,  simply  from  the 
nature  of  the  grant,  and  cannot  be  inferred  from  the  words  by 
which  the  grant  is  made. 

The  relative  position  of  the  Warren  Bridge  has  already  been  de- 
scribed. It  does  not  interrupt  the  passage  over  the  Charles  Eiver 
Bridge,  nor  make  the  way  to  it  or  from  it  less  convenient.  None 
of  the  faculties  or  franchises  granted  to  that  corporation  have 
been  revoked  by  the  legislature;  and  its  right  to  take  the  tolls 
granted  by  the  charter  remains  unaltered.  In  short,  all  the  fran- 
chises and  rights  of  property  enumerated  in  the  charter,  and  there 
mentioned  to  have  been  granted  to  it  remain  unimpaired.  But 
its  income  is  destroyed  by  the  Warren  Bridge;  which,  being  free, 
draws  off  the  passengers  and  property  which  would  have  gone 
over  it,  and  renders  their  franchise  of  no  value.  This  is  the 
gist  of  the  complaint.  For  it  is  not  pretended  that  the  erection 
of  the  Warren  Bridge  would  have  done  them  any  injury,  or  in 
any  degree  affected  their  right  of  property,  if  it  had  not  dimin- 
ished the  amount  of  their  tolls.  In  order  then  to  entitle  them- 
selves to  relief,  it  is  necessary  to  show  that  the  legislature  con- 
tracted not  to  do  the  act  of  which  they  complain;  and  that 
they  impaired  or,  in  other  words,  violated  that  contract  by  tho 
erection  of  the  Warren  Bridge. 

The  inquiry  then  is,  does  the  charter  contain  such  a  contract 
on  the  part  of  the  State?  Is  there  any  such  stipulation  to  be  found 
in  that  instrument?  It  must  be  admitted  on  all  hands,  that  there 
is  none, — no  words  that  even  relate  to  another  bridge,  or  to  the 
diminution  of  their  tolls,  or  to  the  line  of  travel.  If  a  contract 
on  that  subject  can  be  gathered  from  the  charter,  it  must  be  by 
implication,  and  cannot  be  found  in  the  words  used.  Can  sucli 
an  agreement  be  implied?  The  rule  of  construction  before  stated 
is  an  answer  to  the  question.    In  charters  of  this  description,  no 


463  CASES  ON  CONSTITUTIONAL  LAW. 

rights  are  taken  from  the  public,  or  given  to  the  corporation, 
beyond  those  which  the  words  of  the  charter,  by  their  natural  and 
proper  construction,  purport  to  convey.  There  are  no  words  which 
import  such  a  contract  as  the  plaintiffs  in  error  contend  for,  and 
none  can  be  implied;  and  the  same  answer  must  be  given  to  them 
that  was  given  by  this  court  to  the  Providence  Bank.  The  whole 
community  are  interested  in  this  inquiry,  and  they  have  a  right  to 
require  that  the  power  of  promoting  their  comfort  and  conveni- 
ence, and  of  advancing  the  public  prosperity  by  providing  safe, 
convenient,  and  cheap  ways  for  the  transportation  of  produce  and 
the  purposes  of  travel,  shall  not  be  construed  to  have  been  surren- 
dered or  diminished  by  the  State,  unless  it  shall  appear  by  plain 
words  that  it  was  intended  to  be  done. 

But  the  case  before  the  court  is  even  still  stronger  against 
any  such  implied  contract  as  the  plaintiffs  in  error  contend  for. 
The  Charles  River  Bridge  was  completed  in  1786.  The  time 
limited  for  the  duration  of  the  corporation  by  their  original  char- 
ter expired  in  1826.  When,  therefore,  the  law  passed  author- 
izing the  erection  of  the  Warren  Bridge,  the  proprietors  of  Charles 
River  Bridge  held  their  corporate  existence  under  the  law  of  1792, 
which  extended  their  charter  for  thirty  years;  and  the  rights, 
privileges,  and  franchises  of  the  company  must  depend  upon  the 
construction  of  the  last-mentioned  law,  taken  in  connection  with 
the  act  of  1785. 

The  act  of  1792,  which  extends  the  charter  of  this  bridge,  incor- 
porates another  company  to  build  a  bridge  over  Charles  River; 
furnishing  another  communication  with  Boston,  and  distant  only 
betw^een  one  and  two  miles  from  the  old  bridge. 

The  first  six  sections  of  this  act  incorporate  the  proprietors  of 
the  West  Boston  Bridge,  and  define  the  privileges,  and  describe 
the  duties,  of  that  corporation.  In  the  7th  section  there  is  the 
following  recital:  "And  whereas  the  erection  of  Charles  River 
Bridge  was  a  work  of  hazard  and  public  utility,  and  another  bridge 
in  the  place  of  West  Boston  Bridge  may  diminish  the  emoluments 
of  Charles  River  Bridge;  therefore,  for  the  encouragement  of  enter- 
prise," they  proceed  to  extend  the  charter  of  the  Charles  River 
Bridge,  and  to  continue  it  for  the  term  of  seventy  years  from  the 
day  the  bridge  was  completed;  subject  to  the  conditions  prescribed 
in  the  original  act,  and  to  be  entitled  to  the  same  tolls.  It  appears, 
then,  that  by  the  same  act  that  extended  this  charter,  the  legisla- 
ture established  another  bridge,  which n  they  knew  would  lessen 
its  profits;  and  this,  too,  before  the  expiration  of  the  first  charter, 


CHARLES    RIVER   BRIDGE   v.    WARREN    BRIDGE.  463 

and  only  seven  years  after  it  was  granted;  thereby  showing  that  the 
State  did  not  suppose  that,  by  the  terms  it  had  used  in  the  first 
law,  it  had  deprived  itself  of  the  power  of  making  such  public 
improvements  as  might  impair  the  profits  of  the  Charles  Kiver 
Bridge;  and  from  the  language  used  in  the  clauses  of  the  law  by 
which  the  charter  is  extended,  it  would  seem,  that  the  legislature 
were  especially  careful  to  exclude  any  inference  that  the  exten- 
sion was  made  upon  the  ground  of  compromise  with  the  bridge 
company,  or  as  a  compensation  for  rights  impaired. 

On  the  contrary,  words  are  cautiously  employed  to  exclude  that 
conclusion;  and  the  extension  is  declared  to  be  granted  as  a  reward 
for  the  hazard  they  had  run,  and  "for  the  encouragement  of  enter- 
prise." The  extension  was  given  because  the  company  had  under- 
taken and  executed  a  work  of  doubtful  success;  and  the  improve- 
ments which  the  legislature  then  contemplated,  might  diminish 
the  emoluments  they  had  expected  to  receive  from  it.  It  results 
from  this  statement,  that  the  legislature,  in  the  very  law  extend- 
ing the  charter,  asserts  its  rights  to  authorize  improvements  over 
Charles  Eiver  which  would  take  off  a  portion  of  the  travel  from 
this  bridge  and  diminish  its  profits;  and  the  bridge  company 
accept  the  renewal  thus  given,  and  thus  carefully  connected  with 
this  assertion  of  the  right  on  the  part  of  the  State.  Can  they, 
when  holding  their  corporate  existence  under  this  law,  and  de- 
riving their  franchises  altogether  from  it,  add  to  the  privileges 
expressed  in  their  charter  an  implied  agreement,  which  is  in  direct 
conflict  with  a  portion  of  the  law  from  which  they  derive  their 
corporate  existence?  Can  the  legislature  be  presumed  to  have 
taken  upon  themselves  an  implied  obligation,  contrary  to  its  own 
acts  and  declarations  contained  in  the  same  law?  It  would  be 
difficult  to  find  a  case  Justifying  such  an  implication,  even  between 
individuals;  still  less  will  it  be  found  where  sovereign  rights  are 
concerned,  and  where  the  interests  of  a  whole  community  would 
be  deeply  affected  by  such  an  implication.  It  would,  indeed,  be 
a  strong  exertion  of  judicial  power,  acting  upon  its  own  views 
of  what  justice  required,  and  the  parties  ought  to  have  done,  to 
raise,  by  a  sort  of  judicial  coercion,  an  implied  contract,  and  infer 
it  from  the  nature  of  the  very  instrument  in  which  the  legislature 
appear  to  have  taken  pains  to  use  words  which  disavow  and  repu- 
diate any  intention,  on  the  part  of  the  State,  to  make  such  a 
contract. 

Indeed,  the  practice  and  usage  of  almost  every  State  in  the 
Union,  old  enough  to  have  commenced  the  work  of  internal  im- 


464  CASES  ON   CONSTITUTIONAL  LAW. 

provement,  is  opposed  to  the  doctrine  contended  for  on  the  part 
of  the  plaintiffs  in  error.  Turnpike  roads  have  been  made  in  suc- 
cession, on  the  same  line  of  travel;  the  latter  one  interfering  ma- 
teriall}'  with  the  profits  of  the  first.  These  corporations  have,  in 
some  instances,  been  utterly  ruined  by  the  introduction  of  newer 
and  better  modes  of  transportation  and  traveling.  In  some  cases, 
railroads  have  rendered  the  turnpike  roads  on  the  same  line  of 
travel  so  entirely  useless,  that  the  franchise  of  the  turnpike  cor- 
poration is  not  worth  preserving.  Yet  in  none  of  these  cases 
have  the  corporations  supposed  that  their  privileges  were  invaded, 
or  any  contract  violated  on  the  part  of  the  State.  Amid  the  mul- 
titude of  cases  which  have  occurred,  and  have  been  daily  occurring 
for  the  last  forty  or  fifty  years,  this  is  the  first  instance  in  which 
such  an  implied  contract  has  been  contended  for,  and  this  court 
called  upon  to  infer  it  from  an  ordinary  act  of  incorporation, 
containing  nothing  more  than  the  usual  stipulations  and  provi- 
sions to  be  found  in  every  such  law.  The  absence  of  any  such  con- 
troversy, when  there  must  have  been  so  many  occasions  to  give 
rise  to  it,  proves  that  neither  States,  nor  individuals,  nor  corpora- 
tions, ever  imagined  that  such  a  contract  could  be  implied  from 
such  charters.  It  shows  that  the  men  who  voted  for  these  laws 
never  imagined  that  they  were  forming  such  a  contract;  and  if 
we  maintain  that  they  have  made  it,  we  must  create  it  by  a  legal 
fiction,  in  opposition  to  the  truth  of  the  fact,  and  the  obvious 
intention  of  the  party.  We  cannot  deal  thus  with  the  rights 
reserved  to  the  States,  and  by  legal  intendments  and  mere  tech- 
nical reasoning  take  away  from  them  any.  portion  of  that  power 
over  their  own  internal  police  and  improvement  which  is  so  neces- 
sary to  their  well-being  and  prosperity. 

And  what  would  be  the  fruits  of  this  doctrine  of  implied  con- 
tracts on  the  part  of  the  States,  and  of  property  in  a  line  of 
travel  by  a  corporation,  if  it  should  now  be  sanctioned  by  this 
court?  To  what  results  would  it  lead  us?  If  it  is  to  be  found 
in  the  charter  to  this  bridge,  the  same  process  of  reasoning  must 
discover  it,  in  the  various  acts  which  have  been  passed,  within 
the  last  forty  years,  for  turnpike  companies.  And  what  is  to  be 
the  extent  of  the  privileges  of  exclusion  on  the  different  sides  of 
the  road?  The  counsel  who  have  so  ably  argued  this  case  have 
not  attempted  to  define  it  by  any  certain  boundaries.  How  far 
must  the  new  improvement  be  distant  from  the  old  one?  How 
near  may  you  approach  without  invading  its  rights  in  the  privileged 
line?    If  this  court  should  establish  the  principles  now  contended 


CHARLES    RIVER   BRIDGE   v.    WARREN   BRIDGE.  465 

for,  what  is  to  become  of  the  numerous  railroads  established  on 
the  same  line  of  travel  with  turnpike  companies;  and  which  have 
rendered  the  franchises  of  the  turnpike  corporations  of  no  value? 
Let  it  once  be  understood  that  such  charters  carry  with  them 
these  implied  contracts,  and  give  this  unknown  and  undefined 
property  in  a  line  of  travelling,  and  you  will  soon  find  the  old  turn- 
pike corporations  awakening  from  their  sleep  and  calling  upon 
this  court  to  put  down  the  improvements  which  have  taken  their 
place.  The  millions  of  property  which  have  been  invested  in  rail- 
roads and  canals  upon  lines  of  travel  which  had  been  before  occu- 
pied by  turnpike  corporations  will  be  put  in  jeopardy.  We  shall 
be  thrown  back  to  the  improvements  of  the  last  century,  and 
obliged  to  stand  still  until  the  claims  of  the  old  turnpike  cor- 
porations shall  be  satisfied,  and  they  shall  consent  to  permit  these 
States  to  avail  themselves  of  the  lights  of  modern  science,  and  to 
partake  of  the  benefit  of  those  improvements  which  are  now  add- 
ing to  the  wealth  and  prosperity,  and  the  convenience  and  com- 
fort, of  every  other  part  of  the  civilized  world.  Nor  is  this  all. 
This  court  will  find  itself  compelled  to  fix,  by  some  arbitrary  rule, 
the  width  of  this  new  kind  of  property  in  a  line  of  travel;  for  if 
such  a  right  of  property  exists,  we  have  no  lights  to  guide  us  in 
marking  out  its  extent,  unless,  indeed,  we  resort  to  the  old  feudal 
grants,  and  to  the  exclusive  rights  of  ferries,  by  prescription, 
between  towns,  and  are  prepared  to  decide  that  when  a  turnpike 
road  from  one  town  to  another  had  been  made,  no  railroad  or  canal, 
between  these  two  points,  could  afterwards  be  established.  This 
court  are  not  prepared  to  sanction  principles  which  must  lead  to 
such  results. 

Many  other  questions  of  the  deepest  importance  have  been 
raised  and  elaborately  discussed  in  the  argument.  It  is  not  nec- 
essary, for  the  decision  of  this  case,  to  express  our  opinion  upon 
them;  and  the  court  deem  it  proper  to  avoid  volunteering  an  opin- 
ion on  any  question  involving  the  construction  of  the  constitution, 
where  the  case  itself  does  not  bring  the  question  directly  before 
them,  and  make  it  their  daty  to  decide  upon  it. 

Some  questions,  also,  of  a  purely  technical  character  have  been 
made  and  argued  as  to  the  form  of  proceeding  and  the  right  to 
relief.  But  enough  appears  on  the  record  to  bring  out  the  great 
question  in  contest;  and  it  is  the  interest  of  all  parties  concerned 
that  the  real  controversy  should  be  settled  without  further  delay; 
and  as  the  opinion  of  the  court  is  pronounced  on  the  main  ques- 
tion in  dispute  here,  and  disposes  of  the  whole  ease,  it  is  altogether 

30 


466  CASES  ON   CONSTITUTIONAL  LAW. 

unnecessary  to  enter  upon  the  examination  of  the  forms  of  pro- 
ceeding in  which  the  parties  have  brought  it  before  the  court. 

The  judgment  of  the  supreme  judicial  court  of  the  commonwealth 
of  Massachusetts,  dismissing  the  plaintiff i^  hill,  must,  therefore, 
he  affirmed,  loith  costs. 

[Mb.  Justice  McLean  delivered  an  opinion  in  which  he  argued 
that  the  case  should  be  dismissed  for  want  of  Jurisdiction.  Mr. 
Justice  Story  delivered  a  dissenting  opinion,  in  which  Mr. 
Justice  Thompson  concurred.] 


XI.    CIVIL  AND  POLITICAL  RIGHTS. 


BAEEON,  Etc.,  v.  MAYOE,  Etc.,  of  BALTIMOEE. 
7  Peters,  243.    Decided  1833. 

Eeeor  to  the  court  of  appeals  of  the  western  shore  of  the  State 
of  Maryland. 

Case  by  the  plaintiff  in  error  against  the  city  of  Baltimore,  to  re- 
recover  ckimages  for  injuries  to  the  wharf-property  of  the  plaintiff, 
arising  from  the  acts  of  the  corporation 

The  city,  in  the  asserted  exercise  of  its  corporate  authority  over 
the  harbor,  the  paving  of  streets,  a^  regulating  grades  for  paving, 
and  over  the  health  of  Baltimore,  diverted  from  their  accustomed 
and  natural  course,  certain  streams  of  water,  which  flow  from  the 
range  of  hills  bordering  the  city,  and  diverted  them,  so  that  they 
made  deposits  of  sand  and  gravel  near  the  plaintiff's  wharf,  and 
thereby  rendered  the  water  shallow,  and.  prevented  the  access  of 
vessels.  The  decision  of  Baltimore  county  court  was  against  tlie 
defendants,  and  a  verdict  for  $4,500  was  rendered  for  the  plaintiff. 
The  court  of  appeals  reversed  the  judgment  of  Baltimore  county 
court,  and  did  not  remand  the  case  to  that  court  for  a  further 
trial.  From  this  judgment  the  defendant  in  the  court  of  appeals 
prosecuted  a  writ  of  error  to  this  court.     .     .     . 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  judgment  brought  up  by  this  writ  of  error  having  been  ren- 
dered by  the  court  of  a  State,  this  tribunal  can  exercise  no  jurisdic- 
tion over  it,  unless  it  be  shown  to  come  within  the  provisions  of  the 
25th  section  of  the  Judicial  Act.^ 

The  plaintiff  in  error  contends  that  it  comes  within  that  clause 
in  the  fifth  amendment  to  the  constitution,  which  inhibits  the  tak- 
ing of  private  property  for  public  use,  without  just  compensation. 
He  insists  that  this  amendment,  being  in  favor  of  the  liberty  of 
the  citizen,  ought  to  be  so  construed  as  to  restrain  the  legislative 
power  of  a  State,  as  well  as  that  of  the  United  States.  If  this 
1 1  Stats,  at  Large,  85, 
467 


468  CASES   ON   CONSTITUTIONAL   LAW. 

proposition  be  imtriie,  the  court  can  take  no  jurisdiction  of  the 
cause. 

The  question  thus  presented  is,  we  think,  of  great  importance, 
but  not  of  much  difficulty. 

The  constitution  was  ordained  and  established  by  the  people  of 
the  United  States  for  themselves,  for  their  own  government,  and 
not  for  the  government  of  the  individual  States.  Each  State  es- 
tablished a  constitution  for  itself,  and,  in  that  constitution,  pro- 
vided such  limitations  and  restrictions  on  the  powers  of  its  partic- 
ular government  as  its  judgment  dictated.  The  people  of  the 
United  States  framed  such  a  government  for  the  United  States  as 
they  supposed  best  adapted  to  their  situation,  and  best  calculated 
to  promote  their  interests.  The  powers  they  conferred  on  this 
government  were  to  be  exercised  by  itself;  and  the  limitations  on 
power,  if  expressed  in  general  terms,  are  naturally,  and,  we  think, 
necessarily  applicable  to  the  government  created  by  the  instrument. 
They  are  limitations  of  power  granted  in  the  instrument  itself;  not 
of  distinct  governments,  framed  by  different  persons  and  for  dif- 
ferent purposes. 

If  these  propositions  be  correct,  the  fifth  amendment  must  be 
understood  as  restraining  the  power  of  the  general  government, 
not  as  applicable  to  the  States.     In  their  several  constitutions  they 
have  imposed  such  restrictions  on  their  respective  governments  as 
their  own  wisdom  suggested;  such  as  they  deemed  most  proper 
for  themselves.     It  is  a  subject  on  which  they  judge  exclusively, 
and  with  which  others  interfere  no  further  than  they  are  sup- 
posed to  have  a  common  interest. 
A      The  counsel  for  the  plaintiff  in  error  insists  that  the  constitu- 
r  tion  was  intended  to  secure  the  people  of  the  several  States  against 
L    the  undue  exercise  of  power  by  their  respective  state  governments; 
as  well  as  against  that  which  might  be  attempted  by  their  general 
government.     In  support  of  this  argument  he  relies  on  the  inhibi- 
tions contained  in  the  10th  section  of  the  1st  article. 

We  think  that  section  affords  a  strong  if  not  a  conclusive  argu- 
ment in  support  of  the  opinion  already  indicated  by  the  court. 

The  preceding  section  contains  restrictions  which  are  obviously 
intended  for  the  exclusive  purpose  of  restraining  the  exercise  of 
power  by  the  departments  of  the  general  government.  Some  of 
them  use  language  applicable  only  to  congress;  others  are  expressed 
in  general  terms.  The  third  clause,  for  example,  declares  that  "no 
bill  of  attainder  or  ex  post  facto  law  shall  be  passed."  No  lan- 
guage can  be  more  general;  yet  the  demonstration  is  complete  that 


BARRON  V.  MAYOR,  ETC.,  OF  BALTIMORE.       469 

it  applies  solely  to  the  government  of  the  United  States.  In  addi- 
tion to  the  general  arguments  furnished  by  the  instrument  itself, 
some  of  which  have  been  already  suggested,  the  succeeding  sec- 
tion, the  avowed  purpose  of  which  is  to  restrain  state  legislation, 
contains  in  terms  the  very  prohibition.  It  declares  that  *'no  State 
shall  pass  any  bill  of  attainder  or  ex  post  facto  law."  This  pro- 
vision, then,  of  the  9th  section,  however  comprehensive  its  lan- 
guage, contains  no  restriction  on  state  legislation. 

The  9th  section  having  enumerated,  in  the  nature  of  a  bill  of 
rights,  the  limitations  intended  to  be  imposed  on  the  powers  of 
the  general  government,  the  10th  proceeds  to  enumerate  those 
which  were  to  operate  on  the  state  legislatures.  These  restrictions 
are  brought  together  in  the  same  section,  and  are  by  express  words 
applied  to  the  States.  "No  State  shall  enter  into  any  treaty,"  etc. 
Perceiving  that  in  a  constitution  framed  by  the  people  of  the 
United  States  for  the  government  of  all,  no  limitation  of  the  action 
of  government  on  the  people  would  apply  to  the  state  government, 
unless  expressed  in  terms;  the  restrictions  contained  in  the  10th 
section  are  in  direct  words  so  applied  to  the  States. 

It  is  worthy  of  remark,  too,  that  these  inhibitions  generally  re- 
strain state  legislation  on  subjects  intrusted  to  the  general  govern- 
ment, or  in  which  the  people  of  all  the  States  feel  an  interest. 

A  State  is  forbidden  to  enter  into  any  treaty,  alliance,  or  confed- 
eration. If  these  compacts  are  with  foreign  nations,  they  interfere 
Vk'ith  the  treaty-making  power,  which  is  conferred  entirely  on  the 
general  government;  if  with  each  other,  for  political  purposes,  they 
can  scarcely  fail  to  interfere  with  the  general  purpose  and  intent 
of  the  constitution.  To  grant  letters  of  marque  and  reprisal,  would 
lead  directly  to  war;  the  power  of  declaring  which  is  expressly 
given  to  congress.  To  coin  money  is  also  the  exercise  of  a  power 
conferred  on  congress.  It  would  be  tedious  to  recapitulate  the 
several  limitations  on  the  powers  of  the  States  which  are  contained 
in  this  section.  They  will  be  found,  generally,  to  restrain  state 
legislation  on  subjects  intrusted  to  the  government  of  the  Union, 
in  which  the  citizens  of  all  the  States  are  interested.  In  these 
alone  were  the  whole  people  concerned.  The  question  of  their 
application  to  States  is  not  left  to  construction.  It  is  averred  in 
positive  words. 

If  the  original  constitution,  in  the  9th  and  10th  sections  of  the 
1st  article,  draws  this  plain  and  marked  line  of  discrimination 
between  the  limitations  it  imposes  on  the  powers  of  the  general 
government,  and  on  those  of  the  States;  if  in  every  inhibition  in- 


470  CASES  ON   CONSTITUTIONAL  LAW. 

tended  to  act  on  state  power,  words  are  employed  which  directly 
express  that  intent, — some  strong  reason  must  be  assigned  for 
departing  from  this  safe  and  judicious  course  in  framing  the 
amendments,  before  that  departure  can  be  assumed. 

We  search  in  vain  for  that  reason. 

Had  the  people  of  the  several  States,  or  any  of  them,  required 
changes  in  their  constitutions;  had  they  required  additional  safe- 
guards to  liberty  from  the  apprehended  encroachments  of  their 
particular  governments;  the  remedy  was  in  their  own  hands,  and 
would  have  been  applied  by  themselves.  A  convention  would  have 
been  assembled  by  the  discontented  State,  and  the  required  im- 
provements would  have  been  made  by  itself.  The  unwieldy  and 
cumbrous  machinery  of  procuring  a  recommendation  from  two 
thirds  of  congress,  and  the  assent  of  three  fourths  of  their  sister 
States,  could  never  have  occurred  to  any  human  being  as  a  mode 
of  doing  that  which  might  be  effected  by  the  State  itself.  Had 
the  framers  of  these  amendments  intended  them  to  be  limitations 
on  the  powers  of  the  state  governments,  they  would  have  imitated 
the  framers  of  the  original  constitution,  and  have  expressed  that 
intention.  Had  congress  engaged  in  the  extraordinary  occupation 
of  improving  the  constitutions  of  the  several  States  by  affording 
the  people  additional  protection  from  the  exercise  of  power  by 
their  own  governments  in  matters  which  concerned  themselves 
alone,  they  would  have  declared  this  purpose  in  plain  and  intel- 
ligible language. 

But  it  is  universally  understood,  it  is  a  part  of  the  histor}'  of 
'the  day,  that  the  great  revolution  which  established  the  constitu- 
tion of  the  United  States  was  not  effected  without  immense  oppo- 
sition. Serious  fears  were  extensively  entertained  that  those 
powers  which  the  patriot  statesmen,  who  then  watched  over  the 
interests  of  our  country,  deemed  essential  to  union,  and  to  the 
attainment  of  those  invaluable  otbjects  for  which  union  was  sought, 
might  be  exercised  in  a  manner  dangerous  to  liberty.  In  almost 
every  convention  by  which  the  constitution  was  adopted,  amend- 
ments to  guard  against  the  abuse  of  power  were  recommended. 
These  amendments  demanded  security  against  the  apprehended  en- 
croachments of  the  general  government,  not  against  those  of  the 
local  governments. 

In  compliance  with  a  sentiment  thus  generally  expressed  to  quiet 
fears  thus  extensively  entertained,  amendments  were  proposed  by 
the  required  majority  in  congress,  and  adopted  by  the  States. 
These  amendments  contain  no  expression  indicating  an  intention 


I 


SCOTT  V.  SANDFORD.  471 

to  apply  them  to  the  state  governments.     This  court  cannot  so 
apply  them. 

We  are  of  opinion  that  the  provision  in  the  fifth  amendment  to 
the  constitution,  declaring  that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation,  is  intended  solely  as  a 
limitation  on  the  exercise  of  power  by  the  government  of  the  United 
States,  and  is  not  applicable  to  the  legislation  of  the  States.  We 
are  therefore  of  opinion,  that  there  is  no  repugnancy  between  the 
several  acts  of  the  general  assembly  of  Maryland,  given  in  evidence 
by  the  defendants  at  the  trial  of  this  cause,  in  the  court  of  that 
State,  and  the  constitution  of  the  United  States.  This  court, 
therefore,  has  no  jurisdiction  of  the  cause;  and  it  is  dismissed. 


DEED   SCOTT,  Plaintiff  in  Error,  v.  JOHN  F.  A.  SAND- 

FOKD. 

19  Howard,  393.    Decided  1857. 

This  case  was  brought  up,  by  writ  of  error,  from  the  Circuit 
Court  of  the  United  States  for  the  district  of  Missouri.  .  .  . 
[In  1834,  Dred  Scott,  a  negro  slave  belonging  to  Dr.  Emerson,  a 
surgeon  in  the  United  States  army,  was  taken  by  his  master  from 
Missouri  to  Eock  Island,  Illinois,  where  slavery  was  prohibited 
by  statute.  Thence  he  was  taken,  in  1836,  to  Fort  Snelling,  in 
the  territory  of  upper  liOuisiana.  This  post  was  situated  on  the 
west  bank  of  the  Mississippi,  north  of  latitude  36°  30',  and  north 
of  Missouri,  and  hence  within  the  territory  in  which  slavery  had 
been  forbidden  by  the  Missouri  Compromise.  In  1836,  with  the 
consent  of  their  master,  Dred  and  Harriet  were  married.  In  1838, 
Dr.  Emerson  returned  with  his  slaves  to  Missouri.  In  1847,  Dred 
brought  suit  in  the  Missouri  circuit  court  to  recover  his  freedom, 
having  discovered  that  according  to  previous  decisions  of  Missouri 
courts,  residence  in  free  territory  conferred  freedom.  Judgment 
was  rendered  in  his  favor,  but  was  reversed  by  the  Missouri  su- 
preme court.  Before  the  commencement  of  the  present  suit,  Dred 
and  his  wife  and  two  children  were  sold  to  Sandford,  a  citizen  of 
New  York,  Scott  having  brought  suit  in  trespass  for  assault 
and  battery  against  Sandford  in  the  Federal  Circuit  Court  of  Mis- 
souri, Sandford  pleaded  to  the  jurisdiction  of  the  court  that  this 
could  not  be  a  suit  between  citizens  of  different  States,  because 


472  CASES   ON   CONSTITUTIONAL   LAW. 

Scott  was  not  a  citizen  of  Missouri,' but  "a  negro  of  pure  African 
descent;  his  ancestors  were  of  pure  African  blood  and  were  brought 
into  this  country  and  sold  as  negro  slaves."  To  this  Scott  de- 
murred and  the  demurrer  was  sustained.  The  defendant  then 
pleaded  in  bar  to  the  action  that  the  plaintiff  was  his  negro  slave, 
and  that  he  had  only  gently  laid  hands  on  him  to  restrain  him, 
as  he  had  a  right  to  do.  The  judge  instructed  the  jury  that,  "upon 
the  facts  in  this  case,  the  law  is  with  the  defendant."  The 
plaintiff  excepted  to  this  instruction,  and  upon  his  exceptions  the 
case  was  taken  to  the  United  States  Supreme  Court.  There  the 
case  was  twice  argued, — first  at  December  term,  1855,  and  again 
at  December  term,  1856;  judgment  was  deferred  until  March  6, 
1857,  in  order,  says  Alexander  Johnston,  "to  avoid  any  increase  of 
the  excitement  already  attending  the  presidential  election."] 

Mr.  Chief  Justice  Taxey  delivered  the  opinion  of  the  court. 

There  are  two  leading  questions  presented  by  the  record: 

1.  Had  the  Circuit  Court  of  the  United  States  jurisdiction  to 
hear  and  determine  the  case  between  these  parties?     And 

2.  If  it  had  jurisdiction,  is  the  judgment  it  has  given  erroneous 
or  not? 

The  plaintiff  in  error,  who  was  also  the  plaintiff  in  the  court 
below,  was,  with  his  ^vife  and  children,  held  as  slaves  by  the  de- 
fendant, in  the  State  of  Missouri;  and  he  brought  this  action  in 
the  Circuit  Court  of  the  United  States  for  that  district,  to  assert 
the  title  of  himself  and  his  family  to  freedom. 

The  declaration  is  in  the  form  usually  adopted  in  that  State 
to  try  questions  of  this  description,  and  contains  the  averment 
necessar)^  to  give  the  court  jurisdiction;  that  he  and  the  defendant 
are  citizens  of  different  States;  that  is,  that  he  is  a  citizen  of 
JSiIissouri,  and  the  defendant  a  citizen  of  New  York. 

The  defendant  pleaded  in  abatement  to  the  jurisdiction  of  the 
court,  that  the  plaintiff  was  not  a  citizen  of  the  State  of  Missouri, 
as  alleged  in  his  declaration,  being  a  negro  of  African  descent, 
whose  ancestors  were  of  pure  African  blood,  and  who  were  brought 
into  this  country  and  sold  as  slaves. 

To  this  plea  the  plaintiff  demurred,  and  the  defendant  joined  in 
demurrer.  The  court  overruled  the  plea,  and  gave  judgment  that 
the  defendant  should  answer  over.  And  he  thereupon  put  in 
sundry  pleas  in  bar,  upon  which  issues  were  joined;  and  at  the  trial 
the  verdict  and  judgment  were  in  his  favor.  Whereupon  the 
plaintiff  brought  this  writ  of  error. 


SCOTT  V.  SANDFORD.  473 

Before  we  speak  of  the  pleas  in  bar,  it  Avill  be  proper  to  dispose 
of  the  questions  which  have  arisen  on  the  plea  in  abatement. 

That  plea  denies  the  right  of  the  plaintifl  to  sue  in  a  court  of 
the  United  States,  for  the  reasons  therein  stated.  ...  It  is 
suggested,  however,  that  this  plea  is  not  before  us.  .  .  .  We 
think  they  [the  plea  and  the  Judgment  of  the  court  upon  it]  are 
before  us  .  .  .  and  it  becomes,  therefore,  our  duty  to  decide 
whether  the  facts  stated  in  the  plea  are  or  are  not  sufficient  to 
show  that  the  plaintiff  is  not  entitled  to  sue  as  a-  citizen  in  a'court 
of  the  United  States.     .     .     . 

The  question  is  simply  this:  Can  a  negro,  whose  ancestors  were 
imported  into  this  country,  and  sold  as  slaves,  become  a  member 
of  the  political  community  formed  and  brought  into  existence  by 
the  Constitution  of  the  United  States,  and  as  such  become  entitled 
to  all  the  rights,  privileges  and  immunities,  guarantied  by  that 
instrument  to  the  citizen?  One  of  which  rights  is  the  privilege  of 
suing  in  a  court  of  the  United  States  in  the  cases  specified  in  the 
Constitution.  .  .  .  And  this  being  the  only  matter  in  dispute 
on  the  pleadings,  this  court  must  be  understood  as  speaking  in 
this  opinion  of  that  class  only,  that  is,  of  those  persons  who  are 
the  descendants  of  Africans  who  were  imported  into  this  country 
and  sold  as  slaves.     .     .     . 

The  words  "people  of  the  United  States"  and  "citizens"  are 
synonymous  terms,  and  mean  the  same  thing.  They  both  describe 
the  political  body  who,  according  to  our  republican  institutions, 
form  the  sovereignty,  and  who  hold  the  power  and  conduct  the 
Grovernment  through  their  representatives.  They  are  what  we 
familiarly  call  the  "sovereign  people,"  and  every  citizen  is  one 
of  this  people,  and  a  constituent  member  of  this  sovereignty.  The 
question  before  us  is,  whether  the  class  of  persons  described  in 
the  plea  of  abatement  compose  a  portion  of  this  people,  and  are 
constituent  members  of  this  sovereignty?  We  think  they  are  not, 
and  that  they  are  not  included,  and  were  not  intended  to  be  in- 
cluded, under  the  word  "citizens"  in  the  Constitution,  and  can 
therefore  claim  none  of  the  rights  and  privileges  which  that  instru- 
ment provides  for  and  secures  to  citizens  of  the  United  States. 
On  the  contrary  they  were  at  that  time  considered  as  a  subordinate 
and  inferior  class  of  beings,  who  had  been  subjugated  by  the  domi- 
nant race,  and  whether  emancipated  or  not,  yet  remained  subject 
to  their  authority,  and  had  no  rights  or  privileges  but  such  as  those 
who  held  the  power  and  the  Government  might  choose  to  grant 
them.     ... 


474  CASES   ON  CONSTITUTIONAL   LAW. 

In  discussing  this  question,  we  must  not  confound  the  rights  of 
citizenship  which  a  State  may  confer  within  its  own  limits,  and 
the  rights  of  citizenship  as  a  member  of  the  Union.  It  does  not 
by  any  means  follow,  because  he  has  all  the  rights  and  privileges 
of  a  citizen  of  a  State,  that  he  must  be  a  citizen  of  the  United 
States.  He  may  have  all  the  rights  and  privileges  of  the  citizen 
of  a  State,  and  yet  not  be  entitled  to  the  rights  and  privileges  of 
a  citizen  in  any  other  State.  For,  previous  to  the  adoption  of  the 
Constitution  of  the  United  States,  every  State  had  the  undoubted 
right  to  confer  on  whomsoever  it  pleased  the  character  of  citizen, 
and  to  endow  him  with  all  its  rights.  But  this  character  of  course 
was  confined  to  the  boundaries  of  the  State,  and  gave  him  no  rights 
or  privileges  in  other  States  beyond  those  secured  to  him  by  the 
laws  of  nations  and  the  comity  of  States.  Nor  have  the  several 
States  surrendered  the  power  of  conferring  these  rights  and  privi- 
leges by  adopting  the  Constitution  of  the  United  States.  Each 
State  may  still  confer  them  upon  an  alien,  or  any  one  it  thinks 
proper,  or  upon  any  class  or  description  of  persons;  yet  he  would 
not  be  a  citizen  in  the  sense  in  which  that  word  is  used  in  the 
Constitution  of  the  United  States,  nor  entitled  to  sue  as  such  in 
one  of  its  courts,  nor  to  the  privileges  and  immunities  of  a  citizen 
in  the  other  States.  The  rights  which  he  would  acquire  would  be 
restricted  to  the  State  which  gave  them.  The  Constitution  has 
conferred  on  Congress  the  right  to  establish  an  uniform  rule  of 
naturalization,  and  this  right  is  evidently  exclusive,  and  has  al- 
ways been  held  by  this  court  to  be  so.  Consequently,  no  State, 
since  the  adoption  of  the  Constitution,  can,  by  naturalizing  an 
alien,  invest  him  with  the  rights  and  privileges  secured  to  a  citizen 
of  a  State  under  the  Federal  Government,  although,  so  far  as  the 
State  alone  was  concerned,  he  would  undoubtedly  be  entitled  to 
the  rights  of  a  citizen,  and  clothed  with  all  the  rights  and  im- 
munities which  the  Constitution  and  laws  of  the  State  attached  to 
that  character. 

It  is  very  clear,  therefore,  that  no  State  can,  by  any  act  or  law  of 
its  own,  passed  since  the  adoption  of  the  Constitution,  introduce 
a  new  member  into  the  political  community  created  by  the  Consti- 
tution of  the  United  States.  It  cannot  make  him  a  member  of 
this  community  by  making  him  a  member  of  its  own.  And  for 
the  same  reason  it  cannot  introduce  any  person,  or  description  of 
persons,  who  were  not  intended  to  be  embraced  in  this  new  political 
family,  which  the  Constitution  brought  into  existence,  but  were 
intended  to  be  excluded  from  it. 


SCOTT  V.  SANDFORD.  475 

The  question  then  arises,  whether  the  provisions  of  the  Constitu- 
tion, in  relation  to  the  personal  rights  and  privileges  to  which  the 
citizen  of  a  State  should  be  entitled,  embraced  the  negro  African 
race,  at  that  time  in  this  country,  or  who  might  afterward  be  im- 
ported, who  had  then  or  should  afterwards  be  made  free  in  any- 
State;  and  to  put  it  in  the  power  of  a  single  State  to  make  him  a 
citizen  of  the  United  States,  and  endow  him  with  the  full  rights 
of  citizenship  in  every  other  State  without  their  consent?  Does 
the  Constitution  of  the  United  Statas  act  upon  him  whenever  he 
shall  be  made  free  under  the  laws  of  a  State,  and  raised  then  to 
the  rank  of  a  citizen,  and  immediai  3ly  clothe  him  with  all  the  privi- 
leges of  a  citizen  in  every  other  State,  and  in  its  own  courts? 

The  court  think  the  affirmative  of  these  propositions  cannot  be 
maintained.  And  if  it  cannot,  the  plaintiff  in  error  could  not  be 
a  citizen  of  the  State  of  Missouri,  within  the  meaning  of  the  Con- 
stitution of  the  United  States,  and,  consequently,  was  not  entitled 
to  sue  in  its  courts. 

It  is  true,  every  person,  and  every  class  and  description  of  per- 
sons, who  were  at  the  time  of  the  adoption  of  the  Constitution 
recognized  as  citizens  in  the  several  States,  became  also  citizens 
of  this  new  political  body;  but  none  other;  it  was  formed  by  them, 
and  for  them  and  their  posterity,  but  for  no  one  else.  And  the 
personal  rights  and  privileges  guarantied  to  citizens  of  this  new 
sovereignty  were  intended  to  embrace  those  only  who  were  then 
members  of  the  several  State  communities,  or  who  should  after- 
wards, by  birthright  or  otherwise,  become  members,  according  to 
the  provisions  of  the  Constitution  and  the  principles  on  which 
it  was  founded.  It  was  the  union  of  those  who  were  at  that  time 
members  of  distinct  and  separate  political  communities  into  one 
political  family,  whose  power,  for  certain  specified  purposes,  was 
to  extend  over  the  whole  territory  of  the  United  States.  And  it 
gave  to  each  citizen  rights  and  privileges  outside  of  his  State 
which  he  did  not  before  possess,  and  placed  him  in  every  other 
State  upon  a  perfect  equality  with  its  own  citizens  as  to  rights  of 
person  and  rights  of  property;  it  made  him  a  citizen  of  the  United 
States. 

It  becomes  necessary,  therefore,  to  determine  who  were  citizens 
of  the  several  States  when  the  Constitution  was  adopted.  And  in 
order  to  do  this,  we  must  recur  to  the  Governments  and  institutions 
of  the  thirteen  colonies,  when  they  separated  from  Great  Britain 
and  formed  new  sovereignties,  and  took  their  places  in  the  family 
of  independent  nations.     We  must  inquire  who,  at  that  time,  were 


476  CASES    ON    CONSTITUTIONAL    LAW. 

recognized  as  the  people  or  citizens  of  a  State,  whose  rights  and 
liberties  had  been  outraged  by  the  English  Government;  and  who 
declared  their  independence,  and  assumed  the  powers  of  Govern- 
ment to  defend  their  rights  by  force  of  arms. 

In  the  opinion  of  the  court,  the  legislation  and  histories  of  the 
times,  and  the  language  used  in  the  Declaration  of  Independence, 
show,  that  neither  the  class  of  persons  who  had  been  imported 
as  slaves,  nor  their  descendants,  whether  they  had  become  free  or 
not,  were  then  acknowledged  as  a  part  of  the  people,  nor  intended 
to  be  included  in  the  general  words  used  in  that  memorable  instru- 
ment.    .     .     . 

They  had  for  more  than  a  century  before  been  regarded  as  be- 
ings of  an  inferior  order,  and  altogether  unfit  to  associate  w^th 
the  white  race,  either  in  social  or  political  relations;  and  so  far 
inferior,  that  they  had  no  rights  which  the  white  man  was  bound 
to  respect;  and  that  the  negro  might  justly  and  lawfully  be  re- 
duced to  slavery  for  his  benefit.     .     .     . 

The  legislation  of  the  different  colonies  furnishes  positive  and 
indisputable  proof  of  this  fact.  .  .  .  The  language  of  the 
Declaration  of  Independence  is  equally  conclusive.  .  .  .  This 
state  of  public  opinion  had  undergone  no  change  when  the  Con- 
stitution was  adopted,  as  is  equally  evident  from  its  provisions  and 
language.  .  .  .  But  there  are  two  clauses  in  the  Constitution 
which  point  directly  and  specifically  to  the  negro  race  as  a  separate 
class  of  persons,  and  show  clearly  that  they  were  not  regarded  as  a 
portion  of  the  people  or  citizens  of  the  Government  then  formed. 

One  of  these  clauses  reserves  to  each  of  the  thirteen  States  the 
right  to  import  slaves  until  the  year  1808,  if  it  thinks  proper. 
.  .  .  And  by  the  other  provision  the  States  pledge  themselves  to 
each  other  to  maintain  the  right  of  property  of  the  master,  by  de- 
livering up  to  him  any  slave  who  may  have  escaped  from  his  ser- 
vice, and  be  found  within  their  respective  territories.     .     .     . 

The  legislation  of  the  States  therefore  shows,  in  a  manner  not 
to  be  mistaken,  the  inferior  and  subject  condition  of  that  race  at 
the  time  the  Constitution  was  adopted,  and  long  afterwards, 
throughout  the  thirteen  States  by  which  that  instrument  was 
framed;  and  it  is  hardly  consistent  with  the  respect  due  to  these 
States,  to  suppose  that  they  regarded  at  that  time,  as  fellow-citizens 
and  members  of  the  sovereignty,  a  class  of  beings  whom  they  had 
thus  stigmatized;  whom,  as  we  are  bound,  out  of  respect  to  the 
State  sovereignties,  to  assume  they  had  deemed  it  just  and  necessary 
thus  to  stigmatize,  and  upon  whom  they  had  impressed  such  deep 


SCOTT  V.  SANDFCRD.  477 

and  enduring  marks  of  inferiority  and  degradation;  or,  that  when 
they  met  in  convention  to  fomi  the  Constitution,  they  looked  upon 
them  as  a  portion  of  their  constituents,  or  designed  to  include  them 
in  the  provisions  so  carefully  inserted  for  the  security  and  protec- 
tion of  the  liberties  and  rights  of  their  citizens.  It  cannot  be  sup- 
posed that  they  intended  to  secure  to  them  rights,  and  privileges, 
and  rank,  in  the  new  political  body  throughout  the  Union,  which 
every  one  of  them  denied  within  the  limits  of  its  own  dominion. 
More  especially,  it  cannot  he  believed  that  the  large  slave-holding 
States  regarded  them  as  included  in  the  word  citizens,  or  would 
have  consented  to  a  Constitution  which  might  compel  them  to  re- 
ceive them  in  that  character  from  another  State.  For  if  they  were 
so  received,  and  entitled  to  the  privileges  and  immunities  of  citi- 
zens, it  would  exempt  them  from  the  operation  of  the  special  laws 
and  from  the  police  regulations  which  they  considered  to  be  neces- 
sary for  their  own  safety.  It  would  give  to  persons  of  the  negro 
race,  who  were  recognized  as  citizens  in  any  one  State  of  the  Union, 
the  right  to  enter  every  other  State  whenever  they  pleased,  singly 
or  in  companies,  without  pass  or  passport,  and  without  obstruction, 
to  sojourn  there  as  long  as  they  pleased,  to  go  where  they  pleased 
at  every  hour  of  the  day  or  night  without  molestation,  unless  they 
committed  some  violation  of  law  for  which  a  white  man  would  be 
punished;  and  it  would  give  them  the  full  liberty  of  speech  in 
public  and  in  private  upon  all  subjects  upon  which  its  own  citizens 
might  .speak;  to  hold  public  meetings  upon  political  affairs,  and 
to  keep  and  carry  arms  wherever  they  went.  And  all  this  would 
be  done  in  the  face  of  the  subject  race  of  the  same  color,  both  free 
and  slaves,  and  inevitably  producing  discontent  and  insubordina- 
tion among  them,  and  endangering  the  peace  and  safety  of  the 
State.     .     .     . 

To  all  this  mass  of  proof  we  have  still  to  add,  that  Congress  has 
repeatedly  legislated  upon  the  same  construction  of  the  Constitu- 
tion that  we  have  given.  Three  laws,  two  of  which  were  passed 
almost  immediately  after  the  Government  went  into  operation,  will 
be  abundantly  sufficient  to  show  this.     ... 

The  first  of  these  acts  is  the  naturalization  law,  which  was  passed 
at  the  second  session  of  the  first  Congress,  March  26,  1790,  and 
confines  the  right  of  becoming  citizens  "to  aliens  being  free  white 
persons."     .     .     . 

Another  of  the  early  laws  of  which  we  have  spoken,  is  the  first 
militia  law,  which  was  passed  in  1792,  at  the  first  session  of  the 


478  CASES    ON    CONSTITUTIONAL    LAW. 

second  Congress.  ...  It  directs  that  every  "free  able-bodied 
white  male  citizen"  shall  be  enrolled  in  the  militia.     .     .     . 

The  third  act  to  which  we  have  alluded  is  still  more  decisive;  it 
was  passed  as  late  as  1813  (2  Stat.,  809),  and  it  provides:  "That 
from  and  after  the  termination  of  the  war  in  which  the  United 
States  are  now  engaged  with  Great  Britain,  it  shall  not  be  lawful  to 
employ,  on  board  of  any  public  or  private  vessels  of  the  United 
States,  any  person  or  persons  except  citizens  of  the  United  States, 
or  persons  of  color,  natives  of  the  United  States."     .     .     . 

The  conduct  of  the  Executive  Department  of  the  Government 
has  been  in  perfect  harmony  upon  this  subject  with  this  course  of 
legislation.  The  question  was  brought  officially  before  the  late 
William  Wirt,  when  he  was  the  Attorney  General  of  the  United 
States,  in  1821,  and  he  decided  that  the  words  "citizens  of  the 
United  States"  were  used  in  the  acts  of  Congress  in  the  same  sense 
as  in  the  Constitution;  and  that  free  persons  of  color  were  not 
citizens,  within  the  meaning  of  the  Constitution  and  laws;  and 
this  opinion  has  been  confirmed  by  that  of  the  late  Attorney  Gen- 
eral, Caleb  Gushing,  in  a  recent  case,  and  acted  upon  by  the  Secre- 
tary of  State,  who  refused  to  grant  passports  to  them  as  "citizens 
of  the  United  States." 

But  it  is  said  that  a  person  may  be  a  citizen,  and  entitled  to  that 
character,  although  he  does  not  possess  all  the  rights  which  may  be- 
long to  other  citizens;  as,  for  example,  the  right  to  vote,  or  to  hold 
particular  offices;  and  that  yet,  when  he  goes  into  another  State, 
he  is  entitled  to  be  recognized  there  as  a  citizen,  although  the  State 
may  measure  his  rights  by  the  rights  which  it  allows  to  persons 
of  a  like  character  or  class  resident  in  the  State,  and  refuse  to 
him  the  full  rights  of  citizenship. 

This  argument  overlooks  the  language  of  the  provision  in  the 
Constitution  of  which  we  are  speaking. 

Undoubtedly,  a  person  may  be  a  citizen,  that  is,  a  member  of  the 
eonununity  who  form  the  sovereignty,  although  he  exercises  no 
share  of  the  political  power,  and  is  incapacitated  from  holding  par- 
ticular offices.  Women  and  minors,  who  form  a  part  of  the  polit- 
ical family,  cannot  vote;  and  when  a  property  qualification  is  re- 
quired to  vote  or  hold  a  particular  office,  those  who  have  not  the 
necessary  qualification  cannot  vote  or  hold  office,  yet  they  are 
citizens. 

So,  too,  a  person  may  be  entitled  to  vote  by  the  law  of  the  State, 
who  is  not  a  citizen  even  of  the  State  itself.  And  in  some  of  the 
States  of  the  Union  foreigners  not  naturalized  are  allowed  to  vote. 


i 


SCOTT  V.  SANDFORD.  479 

And  the  State  may  give  the  right  to  free  negroes  and  mulattoes, 
hut  that  does  not  make  them  citizens  of  the  State,  and  still  less 
of  the  United  States.  And  the  provision  in  the  Constitution  giv- 
ing privileges  and  immunities  in  other  States,  does  not  apply  to 
them. 

Neither  does  it  apply  to  a  person  who,  heing  the  citizen  of  a 
State,  migrates  to  another  State.  For  then  he  becomes  subject  to 
the  laws  of  the  State  in  which  he  lives,  and  he  is  no  longer  a 
citizen  of  the  State  from  which  he  removed.  And  the  State  in 
which  he  resides  may  then,  unquestionably,  determine  his  status 
or  condition,  and  place  him  among  the  class  of  persons  who  are 
not  recognized  as  citizens,  but  belong  to  an  inferior  and  subject 
race;  and  may  deny  him  the  privileges  and  immunities  enjoyed  by 
its  citizens. 

But  so  far  as  mere  rights  of  person  are  concerned,  the  provision 
in  question  is  confined  to  citizens  of  a  State  who  are  temporarily 
in  another  State  without  taking  up  their  residence  there.  It  gives 
them  no  political  rights  in  the  State  as  to  voting  or  holding  office, 
or  in  any  other  respect.  For  a  citizen  of  one  State  has  no  right 
to  participate  in  the  government  of  another.  But  if  he  ranks  as 
a  citizen  in  the  State  to  which  he  belongs,  within  the  meaning  of 
the  Constitution  of  the  United  States,  then,  whenever  he  goes 
into  another  State,  the  Constitution  clothes  him,  as  to  the  rights 
of  person,  wdth  all  the  privileges  and  immunities  which  belong  to 
citizens  of  the  State.  And  if  persons  of  the  African  race  are  citi- 
zens of  a  State,  and  of  the  United  States,  they  would  be  entitled 
to  all  of  these  privileges  and  immunities  in  every  State,  and  the 
State  could  not  restrict  them;  for  they  would  hold  these  privileges 
and  immunities  under  the  paramount  authority  of  the  Federal 
Government,  and  its  courts  would  be  bound  to  maintain  and  en- 
force them,  the  Constitution  and  laws  of  the  State  to  the  contrary 
notwithstanding.  And  if  the  States  could  limit  or  restrict  them, 
or  place  the  party  in  an  inferior  grade,  this  clause  of  the  Constitu- 
tion would  be  unmeaning,  and  could  have  no  operation;  and  would 
give  no  rights  to  the  citizen  when  in  another  State.  He  would 
have  none  but  what  the  State  itself  chose  to  allow  him.  This  is 
evidently  not  the  construction  or  meaning  of  the  clause  in  ques- 
tion. It  guaranties  rights  to  the  citizen,  and  the  State  cannot 
withhold  them.  And  these  rights  are  of  a  character  and  would 
lead  to  consequences  which  make  it  absolutely  certain  that  the 
African  race  were  not  included  imder  the  name  of  citizens  of  a 
State,  and  were  not  in  the  contemplation  of  the  framers  of  the 


480  CASES    ON    CONSTITUTIONAL    LAW. 

Constitution  when  these  privileges  and  immunities  were  provided 
for  the  protection  of  the  citizens  in  other  States.     .     .     . 

What  the  construction  [of  the  Constitution]  was  at  that  time 
[when  it  was  framed],  we  think  can  hardly  admit  of  doubt.  We  have 
the  language  of  the  Declaration  of  Independence  and  of  the  Articles 
of  Confederation,  in  addition  to  the  plain  words  of  the  Constitution 
itself;  we  have  the  legislation  of  the  different  States,  before,  aibout 
the  time,  and  since,  the  Constitution  was  adopted;  we  have  the 
legislation  of  Congress,  from  the  time  of  its  adoption  to  a  recent 
period;  and  we  have  the  constant  and  uniform  action  of  the  Execu- 
tive Department,  all  concurring  together,  and  leading  to  the  same 
result.  And  if  anything  in  relation  to  the  construction  of  the 
Constitution  can  be  regarded  as  settled,  it  is  that  which  we  now 
give  to  the  word  "citizen"  and  the  word  "people." 

And  upon  a  full  and  careful  consideration  of  the  subject,  the 
court  is  of  opinion,  that,  upon  the  facts  stated  in  the  plea  in  abate- 
ment, Dred  Scott  was  not  a  citizen  of  Missouri  within  the  meaning 
of  the  Constitution  of  the  United  States,  and  not  entitled  as  such 
to  sue  in  its  courts;  and,  consequently,  that  the  Circuit  Court  had 
no  jurisdiction  of  the  case,  and  that  the  judgment  on  the  plea  in 
abatement  is  erroneous.  .  .  .  [Here  follows  a  discussion  of  the 
judicial  authority  of  the  court  to  examine  any  question  in  the  case 
other  than  that  of  the  jurisdiction  of  the  Circuit  Court.  The  court 
determines  that  it  has  the  requisite  authority]. 

We  proceed,  therefore,  to  inquire  whether  the  facts  relied  on  by 
the  plaintiff  entitled  him  to  his  freedom.     .     .     . 

In  considering  this  part  of  the  controversy,  two  questions  arise: 
1.  Was  he,  together  with  his  family,  free  in  Missouri  by  reason 
of  the  stay  in  the  territory  of  the  United  States  hereinbefore  men- 
tioned? And  2.  If  they  were  not,  is  Scott  himself  free  by  rea- 
son of  his  removal  to  Eock  Island,  in  the  State  of  Illinois,  as  stated 
in  the  above  admissions? 

We  proceed  to  examine  the  first  question. 

The  act  of  Congress,  upon  which  the  plaintiff  relies,  declares  that 
slavery  and  involuntary  servitude,  except  as  a  punishment  for 
crime,  shall  be  forever  prohibited  in  all  that  part  of  the  territory 
ceded  by  France,  under  the  name  of  Louisiana,  which  lies  north 
of  thirty-six  degrees  thirty  minutes  north  latitude,  and  not  in- 
cluded within  the  limits  of  Missouri,  And  the  difficulty  which 
meets  us  at  the  threshold  of  this  paxt  of  the  inquiry  is,  whether 
Congress  vrae  authorized  to  pass  this  law,  under  any  of  the  powers 
granted  to  it  by  the  Constitution;  for  if  the  authority  is  not  given 


SCOTT  V.  SANDFORD.  481 

Ly  that  instrument,  it  is  the  duty  of  this  court  to  declare  it  void 
and  inoperative,  and  incapable  of  conferring  freedom  upon  any  one 
who  is  held  as  a  slave  under  the  laws  of  any  one  of  the  States. 

The  counsel  for  the  plaintiff  has  laid  much  stress  upon  that  ar- 
ticle in  the  Constitution  which  confers  on  Congress  the  power  "to 
dispose  of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States;"  but,  in 
the  judgment  of  the  court,  that  provision  has  no  bearing  on  the 
present  controversy,  and  the  power  there  given,  whatever  it  may  be, 
is  confined,  and  was  intended  to  be  confined,  to  the  territory  which 
at  that  time  belonged  to,  or  was  claimed  by,  the  United  States,  and 
was  within  their  boundaries  as  settled  by  the  treaty  with  Great 
Britain,  and  can  have  no  influence  upon  a  territory  afterwards  ac- 
quired from  a  foreign  Government.  It  was  a  special  provision  for 
a  known  and  particular  territorj',  and  to  meet  a  present  emergency, 
and  nothing  more.  ...  It  was  intended  for  a  specific  purpose, 
to  provide  for  the  things  we  have  mentioned.  It  was  to  transfer 
to  the  new  Government  the  property  then  held  in  common  by  the 
States,  and  to  give  to  that  Government  power  to  apply  it  to  the 
objects  for  which  it  had  been  destined  by  mutual  agreement  among 
the  States  before  their  league  was  dissolved.  It  applied  only  to 
the  property  which  the  States  held  in  common  at  that  time,  and 
has  no  reference  whatever  to  any  territory  or  other  property  which 
the  new  sovereignty  might  afterwards  itself  acquire.     .     .     . 

At  the  time  when  the  territory  in  question  was  obtained  by  ces- 
sion from  France,  it  contained  no  population  fit  to  be  associated 
together  and  admitted  as  a  State;  and  it  therefore  was  absolutely 
necessary  to  hold  possession  of  it,  as  a  Territory  belonging  to  the 
United  States,  until  it  was  settled  and  inhabited  by  a  civilized 
community  capable  of  self-government,  and  in  a  condition  to  be 
admitted  on  equal  terms  with  the  other  States  as  a  member  of  the 
Union.  But,  as  we  have  before  said,  it  was  acquired  by  the  General 
Government,  as  the  representative  and  trustee  of  the  people  of  the 
United  States,  and  it  must  therefore  be  held  in  that  character  for 
their  common  and  equal  benefit;  for  it  was  the  people  of  the  sev- 
eral States,  acting  through  their  agent  and  representative,  the  Fed- 
eral Government,  who  in  fact  acquired  the  Territory  in  question, 
and  the  Government  holds  it  for  their  common  use  until  it  shall 
be  associated  with  the  other  States  as  a  member  of  the  Union. 

But  until  that  time  arrives,  it  is  undoubtedly  necessary  that 
some  Government  should  be  established,  in  order  to  organize  soci- 
ety, and  to  protect  the  inhabitants  in  their  persons  and  property; 
31 


482  CASES    ON    CONSTITUTIONAL    LAW. 

and  as  the  people  of  the  United  States  could  act  in  this  matter  only 
through  the  Government  which  represented  them,  and  through 
which  they  spoke  and  acted  when  the  Territory  was  obtained,  it 
was  not  only  within  the  scope  of  its  powers,  but  it  was  its  duty  to 
pass  such  laws  and  establish  such  a  Government  as  would  enable 
those  by  whose  authority  they  acted  to  reap  the  advantages  antici- 
pated from  its  acquisition,  and  to  gather  there  a  population  which 
would  enable  it  to  assume  the  position  to  which  it  was  destined 
among  the  States  of  the  Union.  .  .  .  But  the  power  of  Con- 
gress over  the  person  or  property  of  a  citizen  can  never  be  a  mere 
discretionary  power  under  our  Constitution  and  form  of  Govern- 
ment. The  powers  of  the  Government  and  the  rights  and  privi- 
leges of  the  citizen  are  regulated  and  plainly  defined  by  the  Con- 
stitution itself.  .  .  .  Thus  the  rights  of  property  are  united 
with  the  rights  of  person,  and  placed  on  the  same  ground  by  the 
fifth  amendment  to  the  Constitution,  which  provides  that  no  person 
shall  be  deprived  of  life,  liberty,  and  property,  without  due  process 
of  law.  And  an  act  of  Congress  which  deprives  a  citizen  of  the 
United  States  of  his  liberty  or  property,  merely  because  he  came 
himself  or  brought  his  property  into  a  particular  Territory  of  the 
United  States,  and  who  had  committed  no  offense  against  the  laws, 
could  hardly  be  dignified  with  the  name  of  due  process  of  law. 

It  seems,  however,  to  be  supposed,  that  there  is  a  difference  be- 
tween property  in  a  slave  and  other  property,  and  that  different 
rules  may  be  applied  to  it  in  expounding  the  Constitution  of  the 
United  States.  And  the  laws  and  usages  of  nations,  and  the  writ- 
ings of  eminent  jurists  upon  the  relation  of  master  and  slave  and 
their  mutual  rights  and  duties,  and  the  powers  which  Governments 
may  exercise  over  it,  have  been  dwelt  upon  in  the  argument. 

But  in  considering  the  question  before  us,  it  must  be  borne  in 
mind  that  there  is  no  law  of  nations  standing  between  the  people 
of  the  United  States  and  their  Government,  and  interfering  with 
their  relation  to  each  other.  The  powers  of  the  Government,  and 
the  rights  of  the  citizen  under  it,  are  positive  and  practical  regu- 
lations plainly  written  down.  The  people  of  the  United  States 
have  delegated  to  it  certain  enumerated  powers,  and  forbidden  it 
to  exercise  others.  It  has  no  power  over  the  person  or  property 
of  a  citizen  but  what  the  citizens  of  the  United  States  have  granted. 
And  no  laws  or  usages  of  other  nations,  or  reasoning  of  statesmen 
or  jurists  upon  the  relations  of  master  and  slave,  can  enlarge  the 
powers  of  the  Government,  or  take  from  the  citizens  the  rights 


SCOTT  V.  SANDFORD.  483 

they  have  reserved.  And  if  the  Constitution  recognizes  the  right 
of  property  of  the  master  in  a  slave,  and  makes  no  distinction  be- 
tween that  description  of  property  and  other  property  owned  by 
a  citizen,  no  tribunal,  acting  under  the  authority  of  the  United 
States,  whether  it  be  legislative,  executive,  or  judicial,  has  a  right 
to  draw  such  a  distinction,  or  deny  to  it  the  benefit  of  the  pro- 
visions and  guarantees  which  have  been  provided  for  the  protec- 
tion of  private  prop'erty  against  the  encroachments  of  the  Govern- 
ment. 

Now,  as  we  have  already  said  in  an  earlier  part  of  this  opinion, 
upon  a  different  point,  the  right  of  property  in  a  slave  is  distinctly 
and  expressly  affirmed  in  the  Constitution.  The  right  to  traffic 
in  it,  like  an  ordinary  article  of  merchandise  and  property,  was 
guaranteed  to  the  citizens  of  the  United  States,  in  every  State  that 
might  desire  it,  for  twenty  years.  And  the  Government  in  express 
terms  is  pledged  to  protect  it  in  all  future  time,  if  the  slave  escapes 
from  his  owner.  This  is  done  in  plain  words — too  plain  to  be 
misunderstood.  And  no  word  can  be  found  in  the  Constitution 
which  gives  Congress  a  greater  power  over  slave  property,  or  which 
entitles  property  of  that  kind  to  less  protection  than  property  of 
any  other  description.  The  only  power  conferred  is  the  power 
coupled  with  the  duty  of  guarding  and  protecting  the  owner  in  his 
rights. 

Upon  these  considerations,  it  is  the  opinion  of  the  court  that  the 
act  of  Congress  which  prohibited  a  citizen  from  holding  or  owning 
property  of  this  kind  in  the  territory  of  the  United  States  north 
of  the  line  therein  mentioned,  is  not  warranted  by  the  Constitution, 
and  is  therefore  void;  and  that  neither  Dred  Scott  himself,  nor  any 
of  his  family,  were  made  free  by  being  carried  into  this  territory; 
even  if  they  had  been  carried  there  hy  the  owner,  with  the  inten- 
tion of  becoming  a  permanent  resident.     .     .     . 

But  there  is  another  point  in  the  case  which  depends  upon  State 
power  and  State  law.  And  it  is  contended,  on  the  part  of  the 
plaintiff,  that  he  is  made  free  by  being  taken  to  Rock  Island,  in 
the  State  of  Illinois,  independently  of  his  residence  in  the  territory 
of  the  United  States;  and  being  so  made  free,  he  was  not  again  re- 
duced to  a  state  of  slavery  by  being  brought  back  to  Missouri. 

Our  notice  of  this  part  of  the  case  will  be  very  brief;  for  the 
principle  on  which  it  depends  was  decided  in  this  court,  upon 
much  consideration,  in  the  case  of  Strader  et  al.  v.  Graham,  re- 
ported in  10th  Howard,  82.  In  that  case,  the  slaves  had  been 
taken  from  Kentucky  to  Ohio,  with  the  consent  of  the  owner, 


484  CASES    ON    CONSTITUTIONAL    LAW. 

and  aftenv'ards  brought  back  to  Kentucky.  And  this  court  held 
that  their  status  or  condition,  as  free  or  slave,  depended  upon  the 
laws  of  Kentucky,  when  they  were  brought  back  into  that  State, 
and  not  of  Ohio;  and  that  this  court  had  no  jurisdiction  to  revise 
the  judgment  of  a  State  court  upon  its  own  laws,     .     .     . 

So  in  this  case.  As  Scott  was  a  slave  when  taken  into  the  State 
of  Illinois  by  his  owner,  and  was  there  held  as  such,  and  brought 
back  in  that  character,  his  status,  as  free  or  slave,  depended  on 
the  laws  of  Missouri,  and  not  of  Illinois. 

It  has,  however,  been  urged  in  the  argument,  that  by  the  laws 
of  Missouri  he  was  free  on  his  return,  and  that  this  case,  therefore, 
cannot  be  governed  by  the  case  of  Strader  et  al.  v.  Graham,  where 
it  appeared,  by  the  laws  of  Kentucky,  that  the  plaintiffs  continued 
to  be  slaves  on  their  return  from  Ohio.  But  whatever  doubts  or 
opinions  may,  at  one  time,  have  been  entertained  upon  this  sub- 
ject, we  are  satisfied,  upon  a  careful  examination  of  all  the  cases 
decided  in  the  State  courts  of  Missouri  referred  to,  that  it  is  now 
firmly  settled  by  the  decisions  of  the  highest  court  in  the  State, 
that  Scott  and  his  family  upon  their  return  were  not  free,  but 
were,  by  the  laws  of  Missouri,  the  property  of  the  defendant;  and 
that  the  Circuit  Court  of  the  United  States  had  no  jurisdiction, 
when,  by  the  laws  of  the  State,  the  plaintiff  was  a  slave,  and  not  a 
citizen.     .     .     . 

Upon  the  whole,  therefore,  it  is  the  judgment  of  this  court,  that 
it  appears  by  the  record  before  us,  that  the  plaintiff  in  error  is 
not  a  citizen  of  Missouri,  in  the  sense  in  which  that  word  is  used 
in  the  Constitution;  and  that  the  Circuit  Court  of  the  United 
States,  for  that  reason,  had  no  jurisdiction  in  the  ease,  and  could 
give  no  judgment  in  it.  Its  judgment  for  the  defendant  must, 
consequently,  be  reversed,  and  a  mandate  issued,  directing  the  suit 
to  be  dismissed  for  want  of  jurisdiction. 

Mr.  Justice  Nelson.  ...  In  the  view  we  have  taken  of 
the  case,  it  will  not  be  necessary  to  pass  upon  this  question  [as  to 
whether  the  plea  in  abatement  is  before  the  court],  and  we  shall 
therefore  proceed  at  once  to  an  examination  of  the  case  upon  its 
merits.  The  question  upon  the  merits,  in  general  terms,  is, 
whether  or  not  the  removal  of  the  plaintiff,  who  was  a  slave,  with 
his  master,  from  the  State  of  Missouri  to  the  State  of  UUnois,  with 
a  view  to  a  temporary  residence,  and  after  such  residence  and  re- 
turn to  the  slave  State,  such  residence  in  the  free  State  works  an 
emancipation. 


SCOTT  V.  SANDFORD.  485 

As  appears  from  the  agreed  statement  of  facts,  this  question  has 
been  before  the  highest  court  of  the  State  of  Missouri,  and  a  judg- 
ment rendered  that  this  residence  in  the  free  State  has  no  such 
effect;  but,  on  the  contrary,  that  his  original  condition  continued 
unchanged. 

The  court  below,  the  Circuit  Court  of  the  United  States  for  Mis- 
souri, in  which  this  suit  was  afterwards  brought,  followed  the  deci- 
sion of  the  State  court,  and  rendered  a  like  judgment  against  the 
plaintiff. 

The  argument  against  these  decisions  is,  that  the  laws  of  Illi- 
nois, forbidding  slavery  within  her  territory,  had  the  effect  to  set 
the  slave  free  while  residing  in  that  State,  and  to  impress  upon 
him  the  condition  and  status  of  a  freeman;  and  that,  by  force  of 
these  laws,  this  status  and  condition  accompanied  him  on  his  re- 
turn to  the  slave  State,  and  of  consequence  he  could  not  be  there 
held  as  a  slave. 

This  question  has  been  examined  in  the  courts  of  several  of  the 
slave-holding  States,  and  different  opinions  expressed  and  conclu- 
sions arrived  at.  .  .  .  Our  opinion  is,  that  the  question  is  one 
which  belongs  to  each  State  to  decide  for  itself,  either  by  its  Legis- 
lature or  courts  of  justice;  and  hence,  in  respect  to  the  case  before 
us,  to  the  State  of  Missouri — a  question  exclusively  of  Missouri 
law,  and  which,  when  determined  by  that  State,  it  is  the  duty  of 
the  Federal  courts  to  follow  it.  In  other  words,  except  in  cases 
where  the  power  is  restrained  by  the  Constitution  of  the  United 
States,  the  law  of  the  State  is  supreme  over  the  subject  of  slavery 
within  its  jurisdiction. 

As  a  practical  illustration  of  the  principle,  we  may  refer  to  the 
legislation  of  the  free  States  in  abolishing  slavery,  and  prohibit- 
ing its  introduction  into  their  territories.  Confessedly,  except  as 
restrained  by  the  Federal  Constitution,  they  exercised,  and  right- 
fully, complete  and  absolute  power  over  the  subject.  Upon  what 
principle,  then,  can  it  be  denied  to  the  State  of  Missouri?  The 
power  flows  from  the  sovereign  character  of  the  States  of  this 
Union;  sovereign,  not  merely  as  respects  the  Federal  Government 
— except  as  they  have  consented  to  its  limitation — but  sovereign  as 
respects  each  other.  Whether,  therefore,  the  State  of  Missouri  will 
recognize  or  give  effect  to  the  laws  of  Illinois  within  her  territories 
on  the  subject  of  slavery,  is  a  question  for  her  to  determine.  Nor 
is  there  any  constitutional  power  in  this  Government  that  can 
rightfully  control  her. 

Every  State  or  nation  possesses  an  exclusive  sovereignty  and 


486  CASES    ON    CONSTITUTIONAL    LAW. 

jurisdiction  within  her  own  territory;  and  her  laws  affect  and  bind 
all  property  and  persons  residing  within  it.  It  may  regulate  the 
manner  and  circumstances  under  which  property  is  held,  and  the 
condition,  capacity,  and  state  of  all  persons  therein;  and,  also,  the 
remedy  and  modes  of  administering  justice.  And  it  is  equally 
true,  that  no  State  or  nation  can  affect  or  bind  property  out  of  its 
territory,  or  persons  not  residing  within  it.  No  State,  therefore, 
can  enact  laws  to  operate  beyond  its  own  dominions,  and,  if  it  at- 
tempts to  do  so,  it  may  be  lawfully  refused  obedience.  Such  laws 
can  have  no  inherent  authority  extra-territorially.  This  is  the  nec- 
essary result  of  distinct  and  separate  sovereignties.     .     .     . 

These  principles  fully  establish,  that  it  belongs  to  the  sovereign 
State  of  Missouri  to  determine  by  her  laws  the  question  of  slavery 
within  her  jurisdiction,  subject  only  to  such  Umitations  as  may  be 
found  in  the  Federal  Constitution;  and,  further,  that  the  laws  of 
other  States  of  the  Confederacy,  whether  enacted  by  their  Legisla- 
tures or  expounded  by  their  courts,  can  have  no  operation  within 
her  territory,  or  affect  rights  growing  out  of  her  own  la^vs  on  the 
subject.  This  is  the  necessary  result  of  the  independent  and  sov- 
ereign character  of  the  State.  The  principle  is  not  peculiar  to  the 
State  of  Missouri,  but  is  equally  applicable  to  each  State  belong- 
ing to  the  Confederacy.  The  laws  of  each  have  no  extra-territorial 
operation  within  the  jurisdiction  of  another,  except  such  as  may  be 
voluntarily  conceded  by  her  laws  or  courts  of  justice.  To  the 
extent  of  such  concession  upon  the  rule  of  comity  of  nations,  the 
foreign  law  may  operate,  as  it  then  becomes  a  part  of  the  municipal 
law  of  the  State.  When  determined  that  the  foreign  law  shall 
have  effec .,  the  municipal  law  of  the  State  retires,  and  gives  place 
to  the  foreign  law.     .     .     . 

It  has  been  supposed,  in  the  argument  on  the  part  of  the 
plaintiff,  that  the  eighth  section  of  the  act  of  Congress  passed 
March  6,  1820  (3  St.  at  Large,  p.  544),  which  prohibited  slavery 
north  of  thirty-six  degrees  thirty  minutes,  within  which  the 
plaintiff  and  his  wife  temporarily  resided  at  Fort  Snelling,  pos- 
sessed some  superior  virtue  and  effect,  extra-territorially,  and  with- 
in the  State  of  Missouri,  beyond  that  of  the  laws  of  Illinois,  or 
those  of  Ohio  in  the  case  of  Strader  et  al.  v.  Graham.  A  similar 
ground  was  taken  and  urged  upon  the  court  in  the  case  just  men- 
tioned, under  the  ordinance  of  1787,  which  was  enacted  during 
the  time  of  the  Confederation,  and  re-enacted  by  Congress  after 
the  adoption  of  the  Constitution,  with  some  amendments  adapting 
it  to  the  new  Government.     (1  St.  at  Large,  p.  50). 


SCOTT  V.  SANDFORD.  487 

In  answer  to  this  ground,  the  Chief  Justice,  in  delivering  the 
opinion  of  the  court,  observed:  "The  argument  assumes  that  the 
six  articles  which  that  ordinance  declares  to  be  perpetual,  are  still 
in  force  in  the  States  since  formed  within  the  territory,  and  ad- 
mitted into  the  Union.  If  this  proposition  could  be  maintained, 
it  would  not  alter  the  question;  for  the  regulations  of  Congress, 
under  the  old  Confederation  or  the  present  Constitution,  for  the 
government  of  a  particular  Territory,  could  ha\  e  no  force  beyond 
its  limits.  It  certainly  could  not  restrict  the  power  of  the  States, 
within  their  respective  territories,  nor  in  any  manner  interfere 
with  their  laws  and  institutions,  nor  give  this  court  control  over 
them. 

"The  ordinance  in  question,"  he  observes,  "if  still  in  force,  could 
have  no  more  operation  than  the  laws  of  Ohio  in  the  State  of  Ken- 
tucky, and  could  not  influence  the  decision  upon  the  rights  of  the 
master  or  the  slaves  in  that  State." 

This  view,  thus  authoritatively  declared,  furnishes  a  conclusive 
answer  to  the  distinction  attempted  to  be  set  up  between  the  extra- 
territorial effect  of  a  State  law  and  the  act  of  Congress  in  question. 

It  must  be  admitted  that  Congress  possesses  no  power  to  regu- 
late or  abolish  slavery  within  the  States;  and  that,  if  this  act  had 
attempted  any  such  legislation,  it  would  have  been  a  noillity.  And 
yet  the  argument  here,  if  there  be  any  force  in  it,  leads  to  the 
result,  that  effect  may  be  given  to  such  legislation;  for  it  is  only 
by  giving  the  act  of  Congress  operation  within  the  State  of  Mis- 
souri, that  it  can  have  any  effect  upon  the  question  between  the 
parties.  Having  no  such  effect  directly,  it  will  be  difficult  to 
maintain,  upon  any  consistent  reasoning,  that  it  can  be -'"made  to 
operate  indirectly  upon  the  subject.     .     .     . 

It  is  perhaps  not  unfit  to  notice,  in  this  connection,  that  many 
of  the  most  eminent  states^men  and  jurists  of  the  country  enter- 
tain the  opinion  that  this  provision  of  the  act  of  Congress,  even 
within  the  territory  to  which  it  relates,  was  not  authorized  by  any 
power  under  the  Constitution.     .     .     . 

Upon  the  whole,  it  must  be  admitted  that  the  current  of  author- 
ity, both  in  England  and  in  this  country,  is  in  accordance  with  the 
law  as  declared  by  the  courts  of  IVIissouri  in  the  case  before  us, 
and  we  think  the  court  below  was  not  only  right,  but  bound  to 
follow  it.     .     .     . 

Our  conclusion  is,  that  the  judgment  of  the  court  below  should 
be  affirmed. 

[Justices  Wayne  and  Daniel  concurred  entirely  in  the  opinion 


488  CASES    ON    CONSTITUTIONAL    LAW. 

of  the  Chief  Justice.  Justice  Grier  concurred  with  Justice  Nel- 
son "on  the  questions  discussed  by  him."  He  did  not  mention  the 
plea  in  abatement.  Justice  Campbell  did  not  consider  the  plea 
in  abatement,  but  concurred  with  the  Chief  Justice  as  to  the  other 
points  involved.  Justice  Catron  concurred  with  the  Chief  Justice 
as  to  the  Missouri  Compromise  and  with  Justice  Nelson  as  to  the 
effect  of  residence  in  Illinois.  He  held  that  the  plea  in  abatement 
was  not  before  the  court.  Of  the  two  dissenting  justices,  McLean 
denied  and  Curtis  admitted  that  the  plea  in  abatement  was  open. 

Ms.  Justice  McLean  and  Mr.  Justice  Curtis  dissented. 

Justice  McLean  held,  1.  As  to  the  locality  of  slavery,  that 
it  was  a  mere  municipal  regulation,  founded  upon  and  limited  to 
the  range  of  territorial  laws.  2.  Sfevery  is  emphatically  a  State 
institution.  In  the  formation  of  the  Federal  Constitution,  care 
was  taken  to  confer  no  power  on  the  Federal  Government  to  inter- 
fere with  this  institution  in  the  States.  In  the  provision  respeet- 
ing  the  slave  trade,  in  fixing  the  ratio  of  representation,  and 
providing  for  the  reclamation  of  fugitives  from  labor,  slaves  were 
referred  to  as  persons,  and  in  no  other  respect  are  they  considered 
in  the  Constitution.  3.  As  to  the  power  of  Congress  to  establish 
Territorial  Governments,  and  to  prohibit  the  introduction  of  slav- 
ery therein.  Congress  has  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  and  other  property 
belonging  to  the  United  States.  If  Congress  should  deem  slaves 
or  free  colored  persons  injurious  to  the  population  of  a  free  Terri- 
tory, on  any  ground  connected  with  the  public  interest,  they  have 
the  power  to  prohibit  them  from  becoming  settlers  in  it.  4.  As 
to  the  effect  of  taking  slaves  into  a  State  or  Territory,  and  so  hold- 
ing them,  where  slavery  is  prohibited,  how  can  the  slave  be  coerced 
to  serve  in  a  State  or  Territory,  not  only  without  the  authority  of 
law,  but  against  its  express  provisions?  Where  no  slavery  exists, 
the  presumption,  without  regard  to  color,  is  in  favor  of  freedom. 
In  1824,  in  the  case  of  Winny  v.  Whitesides  (1  Missouri  Rep.,  473), 
the  Missouri  Supreme  Court  held  that  if  a  slave  be  detained  in  Illi- 
nois until  he  be  entitled  to  freedom,  the  right  of  the  owner  does 
not  revive  when  he  finds  the  negro  in  a  slave  State.  5.  As  to 
whether  the  status  of  slavery  attached  to  the  plaintiff  and  wife, 
on  their  return  to  IVIissouri,  this  doctrine  is  not  asserted  in  the 
late  opinion  of  the  Supreme  Co-urt  of  Missouri,  and  up  to  1852 
the  contrary  doctrine  was  uniformly  maintained  by  that  court. 


SCOTT  V.  SANDFORD.  489 

Justice  Cuktis  held  that  the  plea  in  ahatement  was  before  the 
court.  To  determine  whether  any  person  of  African  descent  whose 
ancestors  were  sold  as  slaves  in  the  United  States  can  be  a  citizen 
of  the  United  States,  it  may  be  inquired  who  were  citizens  of  the 
United  States  at  the  time  of  the  adoption  of  the  Constitution. 
Citizens  at  that  time  can  have  been  no  other  than  the  citizens  of 
the  United  States  ufider  the  Confederation.  These  included  free 
persons  descended  from  Africans  held  in  slavery.  At  the  time 
of  the  ratification  of  the  Articles  of  Confederation,  all  free  native- 
born  inhabitants  of  the  States  of  New  Hampshire,  Massachusetts, 
New  York,  New  Jersey  and  North  Carolina.,  though  descended 
from  African  slaves,  were  not  only  citizens  of  those  States,  but  such 
of  them  as  had  the  other  necessary  qualifications  possessed  the 
franchise  of  electors,  on  equal  terms  with  other  citizens.  He  con- 
cluded therefore,  1.  That  the  free-born  citizens  of  each  State  are 
citizens  of  the  United  States.  2.  That  as  free  colored  persons 
born  within  some  of  the  States  are  citizens  of  those  States,  such 
persons  are  also  citizens  of  the  United  States.  3.  That  every  such 
citizen,  residing  in  any  State,  has  the  right  to  sue  and  is  liable  to 
be  sued  in  the  Federal  courts,  as  a  citizen  of  that  State  in  which  he 
resides.  4.  That  as  the  plea  to  the  Jurisdiction  in  this  case  shows 
no  facts,  except  that  the  plaintiff  was  of  African  descent,  and  his 
ancestors  were  sold  as  slaves,  and  as  these  facts  are  not  inconsistent 
with  his  citizenship  of  the  United  States,  and  his  residence  in  the 
State  of  Missouri,  the  plea  to  the  jurisdiction  was  bad,  and  the 
judgment  of  the  Circuit  Court  overruling  it,  was  correct.  As  to 
the  effect  of  Scott's  residence  in  the  Territory  in  which  slavery 
was  prohibited,  the  judge  held  that  the  laws  of  the  United  States 
in  operation  there  changed  his  status  to  that  of  a  free  man.  Fur- 
thermore the  consent  of  the  master  that  his  slave,  residing  in  a 
country  which  does  not  tolerate  slaveiy,  may  enter  into  a  lawful 
contract  of  marriage,  attended  with  the  civil  rights  and  duties 
which  belong  to  that  condition,  is  an  effectual  act  of  emancipation. 
The  Act  of  Congress  of  March  6,  1820,  was  a  regulation  respecting 
the  territory  of  the  United  States,  and  was  a  constitutional  and 
valid  law.] 

Note. — The  court  consisted  at  this  time  of  nine  judges,  seven 
of  whom  concurred  in  the  judgment  rendered.  Of  these  seven, 
only  three,  viz.,  Taney,  Wayne  and  Daniel,  held  that  the  plea  in 
abatement  was  open,  and  hence  that  the  question  of  the  status  of 
free  negroes  was  before  the  court.     Justice  Catron  held  that  the 


490  CASES    ON    CONSTITUTIONAL    LAW. 

plea  was  not  open.  Justices  Nelson  and  Campbell  took  such  views 
of  the  ease  that  they  did  not  pass  upon  it,  and  Justice  Grier  seemed 
to  avoid  the  question.  Six  members  of  the  court,  viz.,  Taney, 
Wayne,  Daniel,  Grier,  Campbell,  and  Catron,  concurred  in  pro- 
nouncing the  Missouri  Compromise  unconstitutional.  Justice 
Nelson  did  not  pass  upon  it. 

It  is  important  in  this  case  to  distinguish  the  opinion  of  the 
court  from  the  judgment  of  the  court.  What  is  called  in  the  re- 
port the  opinion  of  the  court  is  in  reality  only  the  opinion  of  the 
Cliief  Justice,  which  he  delivered  before  announcing  the  judg- 
ment of  the  court.  The  distinction  appears  clearly  in  the  opinions 
of  Justices  Campbell  and  Catron,  who  concurred  in  the  judgment 
of  the  Chief  Justice,  but  expressly  dissented  from  certain  parts 
of  his  opinion.  The  opinion  of  Justice  Nelson  was  the  only  one 
in  which  all  the  justices  of  the  majority  concurred.  It  was  orig- 
inally prepared  to  stand  as  the  opinion  of  the  court.  See  Thayer's 
Cases,  1, 480,  note. 

Scott's  first  case  is  reported  in  15  Mo.,  G83. 

"Had  the  supreme  court  confined  its  action  to  a  denial  of  juris- 
diction in  this  case  on  the  ground  taken  by  the  IMissouri  state  su- 
preme court,  the  decision  would  probably  have  been  accepted 
generally  as  law,  however  harsh,  in  the  case  of  slaves  removed  tem- 
porarily from  state  jurisdiction  and  then  brought  back.  But,  im- 
pelled, as  has  been  charged,  by  a  superserviceable  desire  to  forward 
the  interests  and  designs  of  slave-holders  in  the  territories,  or  as 
is  much  more  probable,  by  the  wide  sweep  taken  by  counsel  on  both 
sides  in  their  arguments,  the  chief  justice  and  the  assenting  jus- 
tices proceeded  to  deliver  a  course  of  individual  lectures  on  history, 
politics,  ethics  and  international  law,  the  exact  connection  of  which 
with  the  legal  subject  matter  in  hand  it  was  in  many  cases  difficult 
for  the  justices  themselves  to  make  perfectly  clear.  In  these  addi- 
tions to  the  denial  of  jurisdiction  lay  the  interest,  importance  and 
far-reaching  consequences  of  the  Dred  Scott  decision.  .  .  . 
The  Dred  Scott  decision  was  the  last  attempt  to  decide  the  con- 
test between  slavery  extension  and  slavery  restriction  by  form 
of  law."     Alexander  Johnston  in  Lalor's  Cyclopedia,  I,  839,  841. 

"It  is  noticeable  that  the  sting  of  the  decision  lay  rather  in  the 
obiter  dicta  than-  in  the  determination  of  the  main  question  in- 
volved."    Bryce,  American  Commonwealth  (3d  Ed.),  I,  263,  note. 

"While  Chief  Justice  Taney  has  always  in  the  public  estimation 
borne  the  brunt  of  this  decision,  it  is  nevertheless  to  be  considered 
that  of  the  nine  judges  of  the  court  six  concurred  with  him  in 


SLAUGHTER-HOUSE    CASES.  491 

holding  that  the  plaintiff  was  a  slave,  and  that  the  judgment  of 
the  court  should  be  affirmed.  Of  these  six  (Catron,  Daniel,  Wayne, 
Campbell,  Nelson,  and  Grier)  two — not  the  two  least  strong — ■ 
were  respectively  from  the  States  of  New  York  and  Pennsylvania, 
and  had  both  held  important  judicial  positions  in  those  States  be- 
fore reaching  the  bench  of  the  Federal  Supreme  Court.  They 
must  all  share — and  doubtless  had  none  of  them  any  desire  to 
avoid  it — the  responsibility  of  this  judgment  of  the  court.  The 
opinion  in  dissent  of  Justice  Curtis,  ...  is  profound  in  its 
examination  of  the  sources  of  the  law  upon  the  subject;  luminous 
and  learned  in  its  consideration  of  the  political  and  judicial  his- 
tory of  the  country;  and  convincing  in  the  conclusions  to  which 
it  arrives.  Hardly  too  much  can  be  said  in  praise  of  this  masterly 
effort."  George  W.  Biddle  in  Constitutional  History  as  seen  in 
American  Law,  180-181. 


SLAUGHTER-HOUSE  CASES. 

16  Wallace,  36.     Decided  1873. 

[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Mr.  Justice  Miller  now,  April  14,  1873,  delivered  the  opinion 
of  the  court. 

These  cases  are  brought  here  by  writs  of  error  to  the  Supreme 
Court  of  the  State  of  Louisiana.  They  arise  out  of  the  efforts  of 
the  butchers  of  New  Orleans  to  resist  the  Crescent  City  Live-Stock 
Landing  and  Slaughter-House  Company  in  the  exercise  of  certain 
powers  conferred  by  the  charter  which  created  it,  and  which  was 
granted  by  the  legislature  of  that  State.     .     .     . 

The  records  show  that  the  plaintiffs  in  error  relied  upon,  and  as- 
serted throughout  the  entire  course  of  the  litigation  in  the  State 
courts,  that  the  grant  of  privileges  in  the  charter  of  defendant, 
which  they  were  contesting,  was  a  violation  of  the  most  important 
provisions  of  the  thirteenth  and  fourteenth  articles  of  amendment 
of  the  Constitution  of  the  United  States.  The  jurisdiction  and  the 
duty  of  this  court  to  review  the  judgment  of  the  State  court  on 
those  questions  is  clear  and  imperative. 

The  statute  thus  assailed  as  unconstitutional  was  passed  March 
8,  1869,  and  is  entitled,  "An  act  to  protect  the  health  of  the  city 


492  CASES    ON    CONSTITUTIONAL    LAW, 

of  Xew  Orleans,  to  locate  the  stock-landings  and  slaughter-houses, 
and  to  incorporate  the  Crescent  City  Live-Stock  Landing  and 
Slaughter-House  Company." 

The  first  section  forbids  the  landing  or  slaughtering  of  animals 
whose  flesh  is  intended  for  food,  within  the  city  of  New  Orleans 
and  other  parishes  and  boundaries  named  and  defined,  or  the  keep- 
ing or  establishing  any  slaughter-houses  or  abattoirs  within  those 
limits,  except  by  the  corporation  thereby  created,  which  is  also  lim- 
ited to  certain  places  afterwards  mentioned.  Suitable  penalties 
are  enacted  for  violations  of  this  prohibition. 

The  second  section  designates  the  corporators,  gives  the  name 
to  the  corporation,  and  confers  on  it  the  usual  corporate  powers. 

The  third  and  fourth  sections  authorize  the  company  to  estab- 
lish and  erect  within  certain  territorial  limits,  therein  defined,  one 
or  more  stock-yards,  stock-landings,  and  slaughter-houses,  and  im- 
pose upon  it  the  duty  of  erecting,  on  or  before  the  first  day  of 
June,  1869,  one  grand  slaughter-house  of  suflacient  capacity  for 
slaughtering  five  hundred  animals  per  day. 

It  declares  that  the  company,  after  it  shall  have  prepared  all  the 
necessary  buildings,  yards,  and  other  conveniences  for  that  pur- 
pose, shall  have  the  sole  and  exclusive  privilege  of  conducting  and 
carrying  on  the  live-stock  landing  and  slaughter-house  business 
within  the  limits  and  privilege  granted  by  the  act,  and  that  all  such 
animals  shall  be  landed  at  the  stock-landings  and  slaughtered  at 
the  slaughter-houses  of  the  company,  and  nowhere  else.  Penalties 
are  enacted  for  infractions  of  this  provision,  and  prices  fixed  for 
the  maximum  charges  of  the  company  for  each  steamboat  and  for 
each  animal  landed. 

Section  five  orders  the  closing  up  of  all  other  stock-landings  and 
slaughter-houses  after  the  first  day  of  June,  in  the  parishes  of  Or- 
leans, Jefferson,  and  St.  Bernard,  and  makes  it  the  duty  of  the 
company  to  permit  any  person  to  slaughter  animals  in  their 
slaughter-houses  under  a  heavy  penalty  for  each  refusal.  Another 
section  fixes  a  limit  to  the  charges  to  be  made  by  the  company  for 
each  animal  so  slaughtered  in  their  building,  and  another  provides 
for  an  inspection  of  all  animals  intended  to  be  so  slaughtered,  by 
an  officer  appointed  by  the  governor  of  the  State  for  that  purpose. 

These  are  the  principal  features  of  the  statute,  and  are  all  that 
have  any  bearing  upon  the  questions  to  be  decided  by  us. 

This  statute  is  denounced  not  only  as  creating  a  monopoly  and 
conferring  odious  and  exclusive  privileges  upon  a  small  number  of 


SLAUGHTER-HOUSE   CASES.  493 

persons  at  the  expense  of  the  great  body  of  the  community  of 
New  Orleans,  but  it  is  asserted  that  it  deprives  a  large  and  meritor- 
ious class  of  citizens — the  whole  of  the  butchers  of  the  city — of  the 
right  to  exercise  their  trade,  the  business  to  which  they  have  been 
trained  and  on  which  they  depend  for  the  support  of  themselves 
and  their  families;  and  that  the  unrestricted  exercise  of  the  busi- 
ness of  butchering  is  necessary  to  the  daily  subsistence  of  the  popu- 
lation of  the  city. 

But  a  critical  examination  of  the  act  hardly  justifies  these  asser- 
tions. 

It  is  true  that  it  grants,  for  a  period  of  twenty-five  years,  exclu- 
sive privileges.  And  whether  those  privileges  are  at  the  expense 
of  the  community  in  the  sense  of  a  curtailment  of  any  of  their 
fundamental  rights,  or  even  in  the  sense  of  doing  them  an  injury, 
is  a  question  open  to  considerations  to  be  hereafter  stated.  But 
it  is  not  true  that  it  deprives  the  butchers  of  the  right  to  exercise 
their  trade,  or  imposes  upon  them  any  restriction  incompatible  with 
its  successful  pursuit,  or  furnishing  the  people  of  the  city  with  the 
necessary  daily  supply  of  animal  food. 

The  act  divides  itself  into  two  main  grants  of  privilege, — the 
one  in  reference  to  stock-landings  and  stock-yards,  and  the  other 
to  slaughter-houses.  That  the  landing  of  live-stock  in  large  droves, 
from  steamboats  on  the  bank  of  the  river,  and  from  railroad  trains, 
should,  for  the  safety  and  comfort  of  the  people  and  the  care  of 
the  animals,  be  limited  to  proper  places,  and  those  not  numerous, 
it  needs  no  argument  to  prove.  Nor  can  it  be  injurious  to  the 
general  community  that  while  the  duty  of  making  ample  prepara- 
tion for  this  is  imposed  upon  a  few  men,  or  a  corporation,  they 
should,  to  enable  them  to  do  it  successfully,  have  the  exclusive 
right  of  providing  such  landing-places,  and  receiving  a  fair  com- 
pensation for  the  service. 

It  is,  however,  the  slaughter-house  privilege,  which  is  mainly 
relied  on  to  justify  the  charges  of  gross  injustice  to  the  public,  and 
invasion  of  private  right. 

It  is  not,  and  cannot  be  successfully  controverted,  that  it  is 
both  the  right  and  the  duty  of  the  legislative  body — the  supreme 
power  of  the  State  or  municipality — to  prescribe  and  determine  the 
localities  where  the  business  of  slaughtering  for  a  great  city  may  be 
conducted.  To  do  this  effectively  it  is  indispensable  that  all  per- 
sons who  slaughter  animals  for  food  shall  do  it  in  those  places  and 
nowhere  else. 

The  statute  under  consideration  defines  these  localities  and  for- 


494  CASES    ON    CONSTITUTIONAL    LAW. 

bids  slaughtering  in  any  other.  It  does  not,  as  has  been  asserted, 
prevent  the  butcher  from  doing  his  own  slaughtering.  On  the 
contrary,  the  Slaughter-House  Company  is  required,  under  a  heavy 
penalty,  to  permit  any  person  who  wishes  to  do  so,  to  slaughter  in 
their  houses;  and  they  are  bound  to  make  ample  provision  for  the 
convenience  of  aH  the  slaughtering  for  the  entire  city.  The 
butcher  then  is  still  permitted  to  slaughter,  to  prepare,  and  to  sell 
his  own  meats;  but  he  is  required  to  slaughter  at  a  specified  place 
and  to  pay  a  reasonable  compensation  for  the  use  of  the  accommo- 
dations furnished  him  at  that  place. 

The  wisdom  of  the  monopoly  granted  by  the  legislature  may  be 
open  to  question,  but  it  is  difficult  to  see  a  justification  for  the 
assertion  that  the  butchers  are  deprived  of  the  right  to  labor  in 
their  occupation,  or  the  people  of  their  daily  service  in  preparing 
food,  or  how  this  statute,  -with  the  duties  and  guards  imposed  upon 
the  company,  can  be  said  to  destroy  the  business  of  the  butcher,  or 
seriously  interfere  wdth  its  pursuit. 

The  power  here  exercised  by  the  legislature  of  Louisiana  is,  in 
its  essential  nature,  one  w'hich  has  been,  up  to  the  present  period 
in  the  constitutional  history  of  this  country,  always  conceded  to 
belong  to  the  States,  however  it  may  now  be  questioned  in  some 
of  its  details. 

"Unwholesome  trades,  slaughter-houses,  operations  offensive  to 
the  senses,  the  deposit  of  powder,  the  application  of  steam-power  to 
propel  cars,  the  building  with  combustible  materials,  and  the  burial 
of  the  dead,  may  all,"  says  Chancellor  Kent,^  "be  interdicted  by 
law,  in  the  midst  of  dense  masses  of  population,  on  the  general  and 
rational  principle,  that  every  person  ought  so  to  use  his  property  as 
not  to  injure  his  neighbors;  and  that  private  interests  must  be  made 
subservient  to  the  general  interests  of  the  community."  This  is 
called  the  police  power;  and  it  is  declared  by  Chief  Justice  Shaw,^ 
that  it  is  much  easier  to  perceive  and  realize  the  existence  and 
sources  of  it  than  to  mark  its  boundaries,  or  prescribe  limits  to  its 
exercise. 

This  power  is,  and  must  be  from  its  very  nature,  incapable  of  any 
very  exact  definition  or  limitation.  Upon  it  depends  the  security 
of  social  order,  the  life  and  health  of  the  citizen,  the  comfort  of 
an  existence  in  a  thickly  populated  community,  the  enjoyment  of 
private  and  social  life,  and  the  beneficial  use  of  property.     "It  ex- 

1  2  Commentaries,  340. 

2  Commonwealth  v.  Alger,  7  Cushing,  84. 


SLAUGHTER-HOUSE    CASES.  495 

tends,"  says  another  eminent  judge/  "to  the  protection  of  the  lives, 
limbs,  health,  comfort,  and  quiet  of  all  persons,  and  the  protection 
of  all  property  within  the  State;  .  .  .  and  persons  and  prop- 
erty are  subjected  to  all  kinds  of  restraints  and  burdens  in  order 
to  secure  the  general  comfort,  health,  and  prosperity  of  the  State. 
Of  the  perfect  right  of  the  legislature  to  do  this  no*question  ever 
was,  or,  upon  acknowledged  general  principles,  ever  can  be  made, 
so  far  as  natural  persons  are  concerned." 

The  regulation  of  the  place  and  manner  of  conducting  the 
slaughtering  of  animals,  and  the  business  of  butchering  within  a 
city,  and  the  inspection  of  the  animals  to  be  killed  for  meat,  and 
of  the  meat  afterwards,  are  among  the  most  necessary  and  frequent 
exercises  of  this  power.  It  is  not,  therefore,  needed  that  we  should 
seek  for  a  comprehensive  definition,  but  rather  look  for  the  proper 
source  of  its  exercise.  .  .  .  [Here  follows  an  extract  from 
Gibbons  v.  Ogden,  9  Wheaton,  303]. 

The  exclusive  authority  of  State  legislation  over  this  subject  is 
strikingly  illustrated  in  the  case  of  the  City  of  New  York  v.  Miln.* 
In  that  case  the  defendant  was  prosecuted  for  failing  to  comply 
with  a  statute  of  New  York  which  required  of  every  master  of  a 
vessel  arriving  from  a  foreign  port,  in  that  of  New  York  City,  to 
report  the  names  of  all  his  passengers,  with  certain  particulars  of 
their  age,  occupation,  last  place  of  settlement,  and  place  of  their 
birth.  It  was  argued  that  this  act  was  an  invasion  of  the  exclusive 
right  of  Congress  to  regulate  commerce.  And  it  cannot  be  de- 
nied, that  such  a  statute  operated  at  least  indirectly  upon  the  com- 
mercial intercourse  between  citizens  of  the  United  States  and  of 
foreign  countries.  But  notwithstanding  this  it  was  held  to  be  an 
exercise  of  the  police  power  properly  within  the  control  of  the 
State,  and  unaffected  by  the  clause  of  the  Constitution  which  con- 
ferred on  Congress  the  right  to  regulate  commerce. 

To  the  same  purpose  are  the  recent  cases  of  The  License  Tax,° 
and  United  States  v.  De\Vitt.°  In  the  latter  case  an  act  of  Con- 
gress which  undertook  as  a  part  of  the  internal  revenue  laws  to 
make  it  a  misdemeanor  to  mix  for  sale  naphtha  and  illuminating 
oils,  or  to  sell  oil  of  petroleum  inflammable  at  less  than  a  pre- 
scribed temperature,  was  held  to  be  void,  because  as  a  police  regu- 
lation the  power  to  make  such  a  law  belonged  to  the  States,  and 
did  not  belong  to  Congress. 

3  Thorpe  v.  Rutland  and  Burlington  Railroad  Co.,  27  Vermont,  149. 

4  11  Peters,  102. 

5  5  Wallace,  471. 

6  9  Id.,  41. 


496  CASES    ON    CONSTITUTIONAL    LAW. 

It  cannot  be  denied  that  the  statute  under  consideration  is  aptly 
framed  to  remove  from  the  more  densely  populated  part  of  the 
city  the  noxious  slaughter-houses,  and  large  and  offensive  collec- 
tions of  animals  necessarily  incident  to  the  slaughtering  business 
of  a  large  city,  and  to  locate  them  where  the  convenience,  health, 
and  comfort  of  the  people  require  they  shall  be  located.  And  it 
must  be  conceded  that  the  means  adopted  by  the  act  for  this  pur- 
pose are  appropriate,  are  stringent,  and  effectual.  But  it  is  said 
that  in  creating  a  corporation  for  this  purpose,  and  conferring  upon 
it  exclusive  privileges — privileges  which  it  is  said  constitute  a  mo- 
nopoly— the  legislature  has  exceeded  its  power.  If  this  statute 
had  imposed  on  the  city  of  New  Orleans  precisely  the  same  dirties, 
accompanied  by  the  same  privileges,  which  it  has  on  the  corpora- 
tion which  it  created,  it  is  believed  that  no  question  would  have 
been  raised  as  to  its  constitutionality.  In  that  case  the  effect  on 
the  butchers  in  pursuit  of  their  occupation  and  on  the  public  would 
have  been  the  same  as  it  is  now.  Why  cannot  the  legislature  con- 
fer the  same  powers  on  another  corporation,  created  for  a  lawful 
and  useful  public  object,  that  it  can  on  the  municipal  corporation 
already  existing?  That  wherever  a  legislature  has  the  right  to 
accomplish  a  certain  result,  and  that  result  is  best  attained  by 
means  of  a  corporation,  it  has  the  right  to  create  such  a  corpora- 
tion, and  to  endow  it  with  the  powers  necessary  to  effect  the  de- 
sired and  lawful  purpose,  seems  hardly  to  admit  of  debate.  The 
proposition  is  ably  discussed  and  affirmed  in  the  case  of  McCulloch 
V.  The  State  of  Maryland,''  in  relation  to  the  power  of  Congress 
to  organize  the  Bank  of  the  United  States  to  aid  in  the  fiscal  operar 
tions  of  the  government. 

It  can  readily  be  seen  that  thfe  interested  vigilance  of  the  corpo- 
ration created  by  the  Louisiana  legislature  will  be  more  efficient 
in  enforcing  the  limitation  prescribed  for  the  stock-landing  and 
slaughtering  business  for  the  good  of  the  city  than  the  ordinary 
efforts  of  the  officers  of  the  law. 

Unless,  therefore,  it  can  be  maintained  that  the  exclusive  privi- 
lege granted  by  this  charter  to  the  corporation  is  beyond  the  power 
of  the  legislature  of  Louisiana,  there  can  be  no  just  exception  to 
the  validity  of  the  statute.  And  in  this  respect  we  are  not  able  to 
see  that  these  privileges  are  especially  odious  or  objectionable. 
The  duty  imposed  as  a  consideration  for  the  privilege  is  well  de- 
fined, and  its  enforcement  well  guarded.     The  prices  or  charges 

7  4  Wheat.,  316. 


SLAUGHTER-HOUSE    CASES.  497 

to  be  made  by  the  company  are  limited  by  the  statute,  and  we  are 
not  advised  that  they  are  on  the  whole  exorbitant  or  unjust. 

The  proposition  is,  therefore,  reduced  to  these  terms:  Can  any 
exclusive  privileges  be  granted  to  any  of  its  citizens,  or  to  a  corpo- 
ration, by  the  legislature  of  a  State? 

The  eminent  and  learned  counsel  who  has  twice  argued  the  nega- 
tive of  this  question,  has  displayed  a  research  into  the  history  of 
monopolies  in  England  and  the  European  continent,  only  equalled 
by  the  eloquence  with  which  they  are  denounced. 

But  it  is  to  be  observed,  that  all  such  references  are  to  monopo- 
lies established  by  the  monarch  in  derogation  of  the  rights  of  his 
subjects,  or  arise  out  of  transactions  in  which  the  people  were  un- 
represented, and  their  interests  uncared  for.  The  great  Case  of 
Monopolies,  reported  by  Coke,  and  so  fully  stated  in  the  brief, 
was  undoubtedly  a  contest  of  the  commons  against  the  monarch. 
The  decision  is  based  upon  the  ground  that  it  was  against  com- 
mon law,  and  the  argument  was  aimed  at  the  unlawful  assump- 
tion of  power  by  the  crown;  for  who  ever  doubted  the  authority  of 
Parliament  to  change  or  modify  the  common  law?  The  discussion 
in  the  House  of  Commons  cited  from  Macaulay  clearly  establishes 
that  the  contest  was  between  the  Crown,  and  the  people  represented 
in  Parliament. 

But  we  think  it  may  be  safely  affirmed,  that  the  Parliament  of 
Great  Britain,  representing  the  people  in  their  legislative  functions, 
and  the  legislative  bodies  of  this  country,  have  fro-m  time  immem- 
orial to  the  present  day  continued  to  grant  to  persons  and  corpora- 
tions exclusive  privileges, — privileges  denied  to  other  citizens, — 
privileges  which  come  within  any  just  definition  of  the  word  mo- 
nopoly, as  much  as  those  now  under  consideration;  and  that  the 
power  to  do  this  has  never  been  questioned  or  denied.  Nor  can 
it  be  truthfully  denied,  that  some  of  the  most  useful  and  bene- 
ficial enterprises  set  on  foot  for  the  general  good,  have  been  made 
successful  by  means  of  these  exclusive  rights,  and  could  only  have 
been  conducted  to  success  in  that  way. 

It  may,  therefore,  be  considered  as  established,  that  the  authority 
of  the  legislature  of  Louisiana  to  pass  the  present  statute  is  ample, 
unless  some  restraint  in  the  exercise  of  that  power  be  found  in  the 
constitution  of  that  State  or  in  the  amendments  to  the  Constitution 
of  the  United  States,  adopted  since  the  date  of  the  decisions  we 
have  already  cited. 

If  any  such  restraint  is  supposed  to  exist  in  the  constitution  of 
the  State,  the  Supreme  Court  of  Louisiana  having  necessarily 
32 


498  CASES    ON    CONSTITUTIONAL    LAW. 

passed  on  that  question,  it  would  not  be  open  to  review  in  this 
court. 

The  plaintiffs  in  error  accepting  this  issue,  allege  that  the  statute 
is  a  violation  of  the  Constitution  of  the  United  States  in  these  sev- 
eral particulars: — 

That  it  creates  an  involuntary  servitude  forbidden  by  the  thir- 
teenth article  of  amendment; 

That  it  abridges  the  privileges  and  immunities  of  citizens  of  the 
United  States; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the  laws; 
and, 

That  it  deprives  them  of  their  property  without  due  process  of 
law;  contrary  to  the  provisions  of  the  first  section  of  the  fourteenth 
article  of  amendment. 

This  court  is  thus  c-alled  upon  for  the  first  time  to  give  construc- 
tion to  these  articles. 

We  do  not  conceal  from  ourselves  the  great  responsibility  which 
this  duty  devolves  upon  us.  No  questions  so  far-reaching  and  per- 
vading in  their  consequences,  so  profoundly  interesting  to  the  peo- 
ple of  this  country,  and  so  important  in  their  bearing  upon  the  rela- 
tions of  the  United  States,  and  of  the  several  States  to  each  other 
and  to  the  citizens  of  the  States  and  of  the  United  States,  have 
been  before  this  court  during  the  official  life  of  any  of  its  present 
members.  We  have  given  every  opportunity  for  a  full  hearing  at  the 
bar;  we  have  discussed  it  freely  and  compared  views  among  our- 
selves; we  have  taken  ample  time  for  careful  deliberation,  and  we 
now  propose  to  announce  the  judgments  which  we  have  formed  in 
the  construction  of  those  articles,  so  far  as  we  have  found  them 
necessary  to  the  decision  of  the  cases  before  us,  and  beyond  that 
we  have  neither  the  inclination  nor  the  right  to  go. 

Twelve  articles  of  amendment  were  added  to  the  Federal  Consti- 
tution soon  after  the  original  organization  of  the  government  under 
it  in  1789.  Of  these  all  but  the  last  were  adopted  so  soon  after- 
wards as  to  justify  the  statement  that  they  were  practically  con- 
temporaneous with  the  adoption  of  the  original;  and  the  twelfth, 
adopted  in  eighteen  hundred  and  three,  was  so  nearly  so  as  to  have 
become,  like  all  the  others,  historical  and  of  another  age.  But 
within  the  last  eight  years  three  other  articles  of  amendment  of 
vast  importance  have  been  added  by  the  voice  of  the  people  to  that 
now  venerable  instrument. 

The  most  cursory  glance  at  these  articles  discloses  a  unity  of 


SLAUGHTER-HOUSE    CASES.  499 

purpose,  when  taken  in  connection  with  the  history  of  the  times, 
which  cannot  fail  to  have  an  important  bearing  on  any  question  of 
doubt  concerning  their  true  meaning.  Nor  can  such  doubts,  when 
any  reasonably  exist,  be  safely  and  rationally  solved  without  a  refer- 
ence to  that  history;  for  in  it  is  found  the  occasion  and  the  necessity 
for  recurring  again  to  the  great  source  of  power  in  this  country,  the 
people  of  the  States,  for  additional  guarantees  of  human  rights; 
additional  powers  to  the  Federal  government;  additional  restraints 
upon  those  of  the  States.  Fortunately  that  history  is  fresh  within 
the  memory  of  us  all,  and  its  leading  features,  as  they  bear  upon 
the  matter  before  us,  free  from  doubt. 

The  institution  of  African  slavery,  as  it  existed  in  about  half 
the  States  of  the  Union,  and  the  contests  pervading  the  public 
mind  for  many  years,  between  those  who  desired  its  curtailment 
and  ultimate  extinction  and  those  who  desired  additional  safeguards 
for  its  security  and  perpetuation,  culminated  in  the  effort,  on  the 
part  of  most  of  the  States  in  which  slavery  existed,  to  separate 
from  the  Federal  government,  and  to  resist  its  authorit3^  This  con- 
stituted the  war  of  the  rebellion,  and  whatever  auxiliary  causes 
may  have  contributed  to  bring  about  this  war,  undoubtedly  the 
overshadowing  and  efficient  cause  was  African  slavery. 

In  that  struggle  slavery,  as  a  legalized  social  relation,  perished. 
It  perished  as  a  necessity  of  the  bitterness  and  force  of  the  con- 
flict. When  the  armies  of  freedom  found  themselves  upon  the  soil 
of  slavery  they  could  do  nothing  less  than  free  the  poor  victims 
whose  enforced  servitude  was  the  foundation  of  the  quarrel.  And 
when  hard  pressed  in  the  contest  these  men  (for  they  proved  them- 
selves men  in  that  terrible  crisis)  offered  their  services  and  were 
accepted  by  thousands  to  aid  in  suppressing  the  unlawful  rebellion, 
slavery  was  at  an  end  wherever  the  Federal  government  succeeded 
in  that  purpose.  The  proclamation  of  President  Lincoln  expressed 
an  accomplished  fact  as  to  a  large  portion  of  the  insurrectionary 
districts,  when  he  declared  slavery  abolished  in  them  all.  But 
the  war  being  over,  those  who  had  succeeded  in  re-establishing  the 
authority  of  the  Federal  government  were  not  content  to  permit 
this  great  act  of  emancipation  to  rest  on  the  actual  results  of  the 
contest  or  the  proclamation  of  the  Executive,  both  of  which  might 
have  been  questioned  in  after  times,  and  they  determined  to  place 
this  main  and  most  valuable  result  in  the  Constitution  of  the  re- 
stored Union  as  one  of  its  fundamental  articles.  Hence  the  thir- 
teenth article  of  amendment  of  that  instrument.     Its  two  short 


500  CASES    ON    CONSTITUTIONAL    LAW. 

sections  seem  hardly  to  admit  of  construction,  so  vigorous  is  their 
expression  and  so  appropriate  to  the  purpose  we  have  indicated. 

"1.  Neither  slaver}^  nor  involuntary  servitude,  except  as  a  pun- 
ishment for  crime,  whereof  the  party  shall  have  heen  duly  con- 
victed, shall  exist  within  the  United  States  or  any  place  subject  to 
their  jurisdiction. 

"2,  Congress  shall  have  power  to  enforce  this  ari;icle  by  appro- 
priate legislation." 

To  withdraw  the  mind  from  the  contemplation  of  this  grand 
yet  simple  declaration  of  the  personal  freedom  of  all  the  human 
race  within  the  jurisdiction  of  this  government — a  declaration  de- 
signed to  establish  the  freedom  of  four  million  of  slaves — ^and  with 
a  microscopic  search  endeavor  to  find  in  it  a  reference  to  servitudes, 
which  may  have  been  attached  to  property  in  certain  localities,  re- 
quires an  effort,  to  say  the  least  of  it. 

That  a  personal  servitude  was  meant  is  proved  by  the  use  of  the 
word  "involuntary,"  which  can  only  apply  to  human  beings.  The 
exception  of  servitude  as  a  punishment  for  crime  gives  an  idea  of 
the  class  of  servitude  that  is  meant.  The  word  "servitude"  is  of 
larger  meaning  than  slavery,  as  the  ktter  is  popularly  understood 
in  this  country,  and  the  obvious  purpose  was  to  forbid  all  shades 
and  conditions  of  African  slavery.  It  was  very  well  understood 
that  in  the  form  of  appreticeship  for  long  terms,  as  it  had  been 
practiced  in  the  West  India  Islands,  on  the  abolition  of  slavery  by 
the  English  government,  or  by  reducing  the  slaves  to  the  condition 
of  serfs  attached  to  the  plantation,  the  purpose  of  the  article  might 
have  been  evaded,  if  only  the  word  "slavery"  had  been  used.  The 
case  of  the  apprentice  slave,  held  under  a  law  of  Maryland,  liber- 
ated by  Chief  Justice  Chase,  on  a  writ  of  habeas  corpus  under  this 
article,  illustrates  this  course  of  observation.^  And  it  is  all  that 
we  deem  necessary  to  say  on  the  application  of  that  article  to  the 
statute  of  Louisiana,  now  under  consideration. 

The  process  of  restoring  to  their  proper  relations  with  the  Fed- 
eral government  and  with  the  other  States  those  which  had  sided 
with  the  rebellion,  undertaken  under  the  proclamation  of  President 
Johnson  in  1865,  and  before  the  assembling  of  Congress,  devel- 
oped the  fact  that,  notwithstanding  the  formal  recognition  by  those 
States  of  the  abohtion  of  slavery,  the  condition  of  the  slave  race 
would,  without  further  protection  of  the  Federal  government,  be 
almost  as  bad  as  it  was  before.  Among  the  first  acts  of  legislation 
adopted  by  several  of  the  States  in  the  legislative  bodies  whic^ 

1  Matter  of  Turner,  1  Abbott  United  States  Reports,  84. 


SLAUGHTER-HOUSE    CASES.  501 

claimed  to  be  in  their  normal  relations  with  the  Federal  govern- 
ment, were  laws  which  imposed  upon  the  colored  race  onerous 
disabilities  and  burdens,  and  curtailed  their  rights  in  the  pursuit 
of  life,  liberty,  and  property  to  such  an  extent  that  their  freedom 
was  of  little  value,  while  they  had  lost  the  protection  which  they 
had  received  from  their  former  owners  from  motives  both  of  inter- 
est and  humanity. 

They  were  in  some  States  forbidden  to  appear  in  the  towns  in  any 
other  character  than  menial  servants.  They  were  required  to  re- 
side on  and  cultivate  the 'soil  without  the  right  to  purchase  or 
own  it.  They  were  excluded  from  many  occupations  of  gain,  and 
were  not  permitted  to  give  testimony  in  the  courts  in  any  ca^se 
where  a  white  man  was  a  party.  It  was  said  that  their  lives  were 
at  the  mercy  of  bad  men,  either  because  the  laws  for  their  pro- 
tection were  insufficient  or  were  not  enforced. 

These  circumstances,  whatever  of  falsehood  or  misconception 
may  have  been  mingled  M'ith  their  presentation,  forced  upon  the 
statesmen  who*  had  conducted  the  Federal  government  in  safety 
through  the  crisis  of  the  rebellion,  and  who  supposed  that  by  the 
thirteenth  article  of  amendment  they  had  secured  the  result  of 
their  labors,  the  conviction  that  something  more  was  necessary  in 
the  way  of  constitutional  protection  to  the  unfortunate  race  who 
had  suffered  so  much.  They  accordingly  passed  through  Congress 
the  proposition  for  the  fourteenth  amendment,  and  they  declined 
to  treat  as  restored  to  their  full  participation  in  the  government  of 
the  Union  the  States  which  had  been  in  insurrection,  until  they 
ratified  that  article  by  a  formal  vote  of  their  legislative  bodies. 

Before  we  proceed  to  examine  more  critically  the  provisions  of 
this  amendment,  on  which  the  plaintiffs  in  error  rely,  let  us  com- 
plete and  dismiss  the  history  of  the  recent  amendments,  as  that 
histoay  relates  to  the  general  purpose  which  pervades  them  all. 
A  few  years'  experience  satisfied  the  thoughtful  men  who  had  been 
the  authors  of  the  other  two  amendments  that,  notwithstanding 
the  restraints  of  those  articles  on  the  States,  and  the  laws  passed 
under  the  additional  powers  granted  to  Congress,  these  were  inade- 
quate for  the  protection  of  life,  liberty,  and  property,  without 
which  freedom  to  the  slave  was  no  boon.  They  were  in  all  those 
States  denied  the  right  of  suffrage.  The  laws  were  administered^ 
by  the  white  man  alone.  It  was  urged  that  a  race  of  men  dis- 
tinctively marked  as  was  the  negro,  living  in  the  midst  of  another 
and  dominant  race,  could  never  be  fully  secured  in  their  person 
and  their  property  without  the  right  of  suffrage. 


503  CASES    ON    CONSTITUTIONAL   LAW. 

Hence  the  fifteenth  amendment,  which  declares  that  "the  right 
of  a  citizen  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  any  State  on  account  of  race,  color,  or  previous  condi- 
tion of  servitude."  The  negro  having,  by  the  fourteenth  amend- 
ment, been  declared  to  be  a  citizen  of  the  United  States,  is  thus 
made  a  voter  in  every  State  of  the  Union. 

We  repeat,  then,  in  the  light  of  this  recapitulation  of  events, 
almost  too  recent  to  be  called  history,  but  which  are  familiar  to  us 
all;  and  on  the  most  casual  examination  of  the  language  of  these 
amendments,  no  one  can  fail  to  be  impressed  with  the  one  per- 
vading purpose  found  in  them  all,  lying  at  the  foundation  of  each, 
and  without  which  none  of  them  would  have  been  even  suggested; 
we  mean  the  freedom  of  the  slave  race,  the  security  and  firm  estab- 
lishment of  that  freedom,  and  the  protection  of  the  newly-made 
freeman  and  citizen  from  the  oppressions  of  those  who  had  for- 
merly exercised  unlimited  dominion  over  him.It  is  true  that  only 
the  fifteenth  amendment,  in  terms,  mentions  the  negro  by  speak- 
ing of  his  color  and  his  slavery.  But  it  is  just  as*true  that  each 
of  the  other  articles  was  addressed  to  the  grievances  of  that  race, 
and  designed  to  remedy  them  as  the  fifteenth. 

We  do  not  say  that  no  one  else  but  the  negro  can  share  in  this 
protection.  Both  the  language  and  spirit  of  these  articles  are  to 
have  their  fair  and  just  weight  in  any  question  of  construction. 
Undoubtedly  while  negro  slavery  alone  was  in  the  mind  of  the 
Congress  which  proposed  the  thirteenth  article,  it  forbids  any  other 
kind  of  slavery,  now  or  hereafter.  If  Mexican  peonage  or  the 
Chinese  cooly  labor  system  shall  develop  slavery  of  the  Mexican 
or  Chinese  race  within  our  territory,  this  amendment  may  safely  be 
trusted  to  make  it  void.  And  so  if  other  rights  are  assailed  by  the 
States  which  properly  and  necessarily  fall  within  the  protection  of 
these  articles,  that  protection  will  apply,  though  the  party  inter- 
ested may  not  be  of  African  descent.  But  what  we  do  say,  and 
what  we  wish  to  be  understood  is,  that  in  any  fair  and  just  con- 
struction of  any  section  or  phrase  of  these  amendments,  it  is 
necessary  to  look  to  the  purpose  which  we  have  said  was  the  per- 
vading spirit  of  them  all,  the  evil  which  they  were  designed  to 
remedy,  and  the  process  of  continued  addition  to  the  Constitution, 
until  that  purpose  was  supposed  to  be  aoeomplished,  as  far  as 
constitutional  law  can  accomplish  it. 

The  first  section  of  the  fourteenth  article,  to  which  our  atten- 
tion is  more  specially  invited,  opens  with  a  definition  of  citizenship 
— ^not  only  citizenship  of  the  United  States,  but  citizenship  of  the 


SLAUGHTER-HOUSE    CASES.  503 

States.  No  such  definition  was  previously  found  in  the  Constitu- 
tion, nor  had  any  attempt  been  made  to  define  it  by  act  of  Congress. 
It  had  been  the  occasion  of  much  discussion  in  the  courts,  by  the 
executive  departments,  and  in  the  public  journals.  It  had  been 
said  by  eminent  judges  that  no  man  was  a  citizen  of  the  United 
States  except  as  he  was  a  citizen  of  one  of  the  States 
composing  the  Union.  Those,  therefore,  who  had  been  born 
and  resided  always  in  the  District  of  Columbia  or  in  the  Territories, 
though  within  the  United  States,  were  not  citizens.  Whether  this 
proposition  was  sound  or  not  had  never  been  judicially  decided. 
But  it  had  been  held  by  this  court,  in  the  celebrated  Dred  Scott 
case,  only  a  few  years  before  the  outbreak  of  the  civil  war,  that 
a  man  of  African  descent,  whether  a  slave  or  not,  was  not  and 
could  not  be  a  citizen  of  a  State  or  of  the  United  States.  This 
decision,  while  it  met  the  condemnation  of  some  of  the  ablest 
statesmen  and  constitutional  lawyers  of  the  country,  had  never 
been  overruled;  and  if  it  was  to  be  accepted  as  a  constitutional 
limitation  of  the  right  of  citizenship,  then  all  the  negro  race  who 
had  recently  been  made  freemen,  were  still,  not  only  not -citizens, 
but  were  incapable  of  becoming  so  by  anything  short  of  an  amend- 
ment to  the  Constitution. 

To  remove  this  difficulty  primarily,  and  to  establish  a  clear  and 
comprehensive  definition  of  citizenship  which  should  declare  what 
should  constitute  citizenship  of  the  United  States,  and  also  citizen- 
ship of  a  State,  the  first  clause  of  the  first  section  was  framed. 

"All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.'' 

The  first  observation  we  have  to  make  on  this  clause  is,  that  it 
puts  at  rest  both  the  questions  which  we  stated  to  have  been  the 
subject  of  differences  of  opinion.  It  declares  that  persons  may  be 
citizens  of  the  United  States  without  regard  to  their  citizenship  of 
a  particular  State,  and  it  overturns  the  Dred  Scott  decision  by 
making  all  persons  born  within  the  United  States  and  subject  to  its 
jurisdiction  citizens  of  the  United  States.  That  its  main  purpose 
was  to  establish  the  citizenship  of  the  negro  can  admit  of  no  doubt. 
The  phrase,  "subject  to  its  jurisdiction"  was  intended  to  exclude 
from  its  operation  children  of  ministers,  consuls,  and  citizens  or 
subjects  of  foreign  States  born  within  the  United  States. 

The  next  observation  is  more  important  in  view  of  the  arguments 
of  counsel  in  the  present  case.  It  is,  that  the  distinction  between 
citizenship  of  the  United  States  and  citizenship  of  a  State  is  clearly 


504  CASES    ON    CONSTITUTIONAL    LAW. 

recognized  and  established.  Not  only  may  a  man  be  a  citizen  of 
the  United  States  without  being  a  citizen  of  a  State,  but  an  im- 
portant element  is  necessary  to  convert  the  former  into  the  latter. 
He  must  reside  within  the  State  to  make  him  a  citizen  of  it,  but  it  is 
only  necessary  that  he  should  be  born  or  naturalized  in  the  United 
States  to  be  a  citizen  of  the  Union. 

It  is  quite  clear,  then,  that  there  is  a  citizenship  of  the  United 
States,  and  a  citizenship  of  a  State,  which  are  distinct  from  each 
other,  and  which  depend  upon  different  characteristics  or  circum- 
stances in  the  individual. 

We  think  this  distinction  and  its  explicit  recognition  in  this 
amendment  of  great  weight  in  this  argument,  because  the  next 
paragraph  of  this  same  section,  which  is  the  one  mainly  relied  on 
by  the  plaintiffs  in  error,  speaks  only  of  privileges  and  immunities 
of  citizens  of  the  United  States,  and  does  not  speak  of  those  of 
citizens  of  the  several  States.  The  argument,  however,  in  favor  of 
the  plaintiffs  rests  wholly  on  the  assumption  that  the  citizenship 
is  the  same,  and  the  privileges  and  immunities  guaranteed  by  the 
clause  are  the  same. 

The  language  is,  "Xo  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States."  It  is  a  little  remarkable,  if  this  clause  was  intended  as  a 
protection  to  the  citizen  of  a  State  against  the  legislative  power  of 
his  own  State,  that  the  word  citizen  of  the  State  should  be  left  out 
when  it  is  so  carefully  used,  and  used  in  contradistinction  to  citizens 
of  the  United  States,  in  the  very  sentence  which  precedes  it.  It  is 
too  clear  for  argument  that  the  change  in  phraseology  was  adopted 
understandingly  and  with  a  purpose. 

Of  the  privileges  and  immunities  of  the  citizen  of  the  United 
States,  and  of  the  privileges  and  immunities  of  the  citizen  of  the 
State,  and  what  they  respectively  are,  we  will  presently  consider; 
but  we  wish  to  state  here  that  it  is  only  the  former  which  are 
placed  by  this  clause  under  the  protection  of  the  Federal  Constitu- 
tion, and  that  the  latter,  whatever  they  may  be,  are  not  intended 
to  have  any  additional  protection  by  this  paragraph  of  the  amend- 
ment. 

If,  then,  there  is  a  difference  between  the  privileges  and  immuni- 
ties belonging  to  a  citizen  of  the  United  States  as  such,  and  those 
belonging  to  the  citizen  of  the  State  as  such,  the  latter  must  rest 
for  their  security  and  protection  where  they  have  heretofore  rested; 
for  they  are  not  embraced  by  this  paragraph  of  the  amendment. 

The  first  occurrence  of  the  words  "privileges  and  immunities" 


SLAUGHTER-HOUSE    CASES.  505 

in  our  constitutional  history,  is  to  be  found  in  the  fourth  of  the 
articles  of  the  old  Confederation. 

It  declares  "that  the  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different  States 
in  this  Union,  the  free  inhabitants  of  each  of  these  States,  paupers, 
vagabonds,  and  fugitives  /rom  justice  excepted,  ,shall  be  entitled  to 
all  the  privileges  and  immunities  of  free  citizens  in  the  several 
States;  and  the  people  of  each  State  shall  have  free  ingress  and 
regress  to  and  from  any  other  State,  and  shall  enjoy  therein  all  the 
privileges  of  trade  and  commerce,  subject  to  the  same  duties,  im- 
positions, and  restrictions  as  the  inhabitants  thereof  respectively." 

In  the  Constitution  of  the  United  States,  which  superseded  the 
Articles  of  Confederation,  the  corresponding  provision  is  found  in 
section  two  of  the  fourth  article,  in  the  following  words:  "The 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and  im- 
munities of  citizens  of  the  several  States." 

There  can  be  but  little  question  that  the  purpose  of  both  these 
provisions  is  the  same,  and  that  the  privileges  and  immunities  in- 
tended are  the  same  in  each.  In  the  article  of  the  Confederation 
we  have  some  of  these  specifically  mentioned,  and  enough  perhaps 
to  give  some  general  idea  of  the  ckss  of  civil  rights  meant  by  the 
phrase. 

Fortunately  we  are  not  without  judicial  construction  of  this 
clause  of  the  Constitution.  The  first  and  the  leading  case  on  the 
subject  is  that  of  Corfield  v.  Coryell,  decided  by  IVIr.  Justice  Wash- 
ington in  the  Circuit  Court  for  the  District  of  Pennsylvania  in 
1823.1 

"The  inquiry,"  he  says,  "is,  what  are  the  privileges  and  immuni- 
ties of  citizens  of  the  several  States?  We  feel  no  hesitation  in 
confining  these  expressions  to  those  privileges  and  immunities 
which  are  fundamental;  which  belong  of  right  to  the  citizens  of  all 
free  governments,  and  which  have  at  all  times  been  enjoyed  by 
citizens  of  the  several  States  which  compose  this  Union,  from  the 
time  of  their  becoming  free,  independent,  and  sovereign.  What 
these  fundamental  principles  are,  it  would  be  more  tedious  than 
difficult  to  enumerate.  They  may  all,  however,  be  comprehended 
under  the  following  general  heads:  protection  by  the  government, 
with  the  right  to  acquire  and  possess  property  of  every  kind,  and 
to  pursue  and  obtain  happiness  and  safety,  subject,  nevertheless, 
to  such  restraints  as  the  government  may  prescribe  for  the  gen- 
eral good  of  the  whole."     [The  court  then  cites  Ward  v.  The  State 

1  4  Washington's  Circuit  Court,  371. 


506  CASES    ON    CONSTITUTIONAL    LAW. 

of  Mainland,  12  Wallace,  430,  and  Paul  v.  Virginia,  8  Wallace, 
180]. 

The  constitutional  provision  there  alluded  to  did  not  create  those 
rights,  which  it  called  privileges  and  immunities  of  citizens  of  the 
States.  It  threw  around  them  in  that  clause  no  security  for  the 
citizen  of  the  State  in  which  they  were  claimed  or  exercised.  Nor 
did  it  profess  to  control  the  power  of  the  State  governments  over 
the  rights  of  its  own  citizens. 

Its  sole  purpose  was  to  declare  to  the  several  States,  that  what- 
ever those  rights,  as  you  grant  or  establish  them  to  your  own  citi- 
zens, or  as  you  limit  or  qualify,  or  impose  restrictions  on  their 
exercise,  the  same,  neither  more  nor  less,  shall  be  the  measure  of 
the  rights  of  citizens  of  other  States  within  your  jurisdiction. 

It  would  be  the  vainest  show  of  learning  to  attempt  to  prove  by 
citation  of  authority,  that  up  to  the  adoption  of  the  recent  amend- 
ments, no  claim  or  pretense  was  set  up  that  those  rights  depended 
on  the  Federal  government  for  their  existence  or  protection,  beyond 
the  very  few  express  limitations  which  the  Federal  Constitution 
imposed  upon  the  States — such,  for  instance,  as  the  prohibition 
against  ex  post  facto  laws,  bills  of  attainder,  and  laws  impairing 
the  obligation  of  contracts.  But  with  the  exception  of  these  and 
a  few  other  restrictions,  the  entire  domain  of  the  privileges  and 
immunities  of  citizens  of  the  States,  as  above  defined,  lay  within 
the  constitutional  and  legislative  power  of  the  States,  and  without 
that  of  the  Federal  government.  Was  it  the  purpose  of  the  four- 
teenth amendment,  by  the  simple  declaration  that  no  State  should 
make  or  enforce  any  law  which  shall  abridge  the  privileges  and 
immunities  of  citizens  of  the  United  States,  to  transfer  the  security 
and  protection  of  all  the  civil  rights  which  we  have  mentioned, 
from  the  States  to  the  Federal  government?  And  where  it  is  de- 
clared that  Congress  shall  have  the  power  to  enforce  that  article, 
was  it  intended  to  bring  within  the  power  of  Congress  the  entire 
domain  of  civil  rights  heretofore  belonging  exclusively  to  the 
States? 

All  this  and  more  must  follow,  if  the  proposition  of  the  plaintiffs 
in  error  be  sound.  For  not  only  are  these  rights  subject  to  the 
control  of  Congress  whenever  in  its  discretion  any  of  them  are 
supposed  to  be  abridged  by  State  legislation,  but  that  body  may 
also  pass  laws  in  advance,  limiting  and  restricting  the  exercise  of 
legislative  power  by  the  States,  in  their  most  ordinary  and  usual 
functions,  as  in  its  judgment  it  may  think  proper  on  all  such  sub- 
jects.    And    still  further,  such   a   construction  followed  by   the 


SLAUGHTER-HOUSE    CASES.  507 

reversal  of  the  judgments  of  the  Supreme  Court  of  Louisiana  in 
these  cases,  would  constitute  this  court  a  perpetual  censor  upon  all 
legislation  of  the  States,  on  the  civil  rights  of  their  own  citizens, 
with  authority  to  nullify  such  as  it  did  not  approve  as  consistent 
•with  those  rights,  as  they  existed  at  the  time  of  the  adoption  of 
this  amendment.  The  argument,  we  admit,  is  not  always  the  most 
conclusive  which  is  drawn  from  the  consequences  urged  against 
the  adoption  of  a  particular  construction  of  an  instrument.  But 
when,  as  in  the  case  before  us,  these  consequences  are  so  serious, 
so  far-reaching  and  pervading,  so  great  a  departure  from  the 
structure  and  spirit  of  our  institutions;  when  the  effect  is  to  fetter 
and  degrade  the  State  governments  by  subjecting  them  to  the 
control  of  Congress,  in  the  exercise  of  powers  heretofore  universally 
conceded  to  them  of  the  most  ordinary  and  fundamental  character; 
when  in  fact  it  radically  changes  the  whole  theory  of  the  relations 
of  the  State  and  Federal  governments  to  each  other  and  of  both 
these  governments  to  the  people;  the  argument  has  a  force  that  is 
irresistible,  in  the  absence  of  language  which  expresses  such  a  pur- 
pose too  clearly  to  admit  of  doubt. 

We  are  convinced  that  no  such  results  were  intended  by  the  Con- 
gress which  proposed  these  amendments,  nor  by  the  legislatures  of 
the  States  which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on  in 
the  argument  are  those  which  belong  to  citizens  of  the  States  as 
such,  and  that  they  are  left  to  the  State  governments  for  security 
and  protection,  and  not  by  this  article  placed  under  the  special 
care  of  the  Federal  government,  we  may  hold  ourselves  excused 
from  defining  the  privileges  and  immunities  of  citizens  of  the 
United  States  which  no  State  can  abridge,  until  some  case  involving 
those  privileges  may  make  it  necessary  to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  immunities 
are  to  be  found  if  those  we  have  been  considering  are  excluded,  we 
venture  to  suggest  some  which  owe  their  existence  to  the  Federal 
government,  its  National  character,  its  Constitution,  or  its  laws. 

One  of  these  is  well  described  in  the  ease  of  Crandall  v.  Nevada.^ 
It  is  said  to  be  the  right  of  the  citizen  of  this  great  country,  pro- 
tected by  implied  guarantees  of  its  Constitution,  "to  come  to  the 
seat  of  government  to  assert  any  claim  he  may  have  upon  that  gov- 
ernment, to  transact  any  business  he  may  have  with  it,  to  seek  its 
protection,  to  share  its  oflfices,  to  engage  in  administering  its 
functions.     He  has  the  right  of  free  access  to  its-seaports,  through 

1  6  Wall.,  36. 


508  CASES    ON    CONSTITUTIONAL   LAW. 

which  all  operations  of  foreign  commerce  are  conducted,  to  the 
sub-treasuries,  land  offices,  and  courts  of  justices  in  the  several 
States."  And  quoting  from  the  language  of  Chief  Justice  Taney 
in  another  case,  it  is  said  "that  for  all  the  great  purposes  for  which 
the  Federal  government  was  established,  we  are  one  people,  with 
one  common  country,  we  are  all  citizens  of  the  United  States;"  and 
it  is,  as  such  citizens,  that  their  rights  are  supported  in  this  court 
in  Crandall  v.  Nevada. 

Another  privilege  of  a  citizen  of  the  United  States  is  to  demand 
the  care  and  protection  of  the  Federal  government  over  his  life, 
liberty,  and  property  when  on  the  high  seas  or  within  the  juris- 
diction of  a  foreign  government.  Of  this  there  can  be  no  doubt, 
nor  that  the  right  depends  upon  his  character  as  a  citizen  of  the 
United  States.  The  right  to  peaceably  assemble  and  petition  for 
redress  of  grievances,  the  privilege  of  the  writ  of  habeas  corpus, 
are  rights  of  the  citizen  guaranteed  by  the  Federal  Constitution. 
The  right  to  use  the  navigable  waters  of  the  United  States,  how- 
ever they  may  penetrate  the  territory  of  the  several  States,  all 
rights  secured  to  our  citizens  by  treaties  with  foreign  nations,  are 
dependent  upon  citizenship  of  the  United  States,  and  not  citizen- 
ship of  a  State.  One  of  these  privileges  is  conferred  by  the  very 
article  under  consideration.  It  is  that  a  citizen  of  the  United 
States  can,  of  his  own  volition,  become  a  citizen  of  any  State  of 
the  Union  by  a  bona  fide  residence  therein,  with  the  same  rights  as 
other  citizens  of  that  State,  To  these  may  be  added  the  rights 
secured  by  the  thirteenth  and  fifteenth  articles  of  amendment, 
and  by  the  other  clause  of  the  fourteenth,  next  to  be  considered. 

But  it  is  useless  to  pursue  this  branch  of  the  inquiry,  since  we 
are  of  opinion  that  the  rights  claimed  by  these  plaintiffs  in  error, 
if  they  have  any  existence,  are  not  privileges  and  immunities  of 
citizens  of  the  United  States  within  the  meaning  of  the  clause  of 
the  fourteenth  amendment  under  consideration. 

"All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  its  laws." 

The  argument  has  not  been  much  pressed  in  these  cases  that 
the  defendant's  charter  deprives  the  plaintiffs  of  their  property 
without  due  process  of  law,  or  that  it  denies  to  them  the  equal 


SLAUGHTER-HOUSE    CASES.  509 

protection  of  the  law.  The  first  of  these  paragraphs  has  been  in 
the  Constitution  since  the  adoption  of  the  fifth  amendment,  as  a 
restraint  upon  the  Federal  power.  It  is  also  to  be  found  in  some 
form  of  expression  in  the  constitutions  of  nearly  all  the  States,  as  a 
restraint  upon  the  power  of  the  States.  This  law,  then,  has  prac- 
tically been  the  same  as  it  now  is  during  the  existence  of  the 
government,  except  so  far  as  the  present  amendment  may  place  the 
restraining  power  over  the  States  in  this  matter  in  the  hands  of  the 
Federal  government. 

We  are  not  without  judicial  interpretation,  therefore,  both  State 
and  National,  of  the  meaning  of  this  clause.  And  it  is  sufficient  to 
say  that  under  no  construction  of  that  provision  that  we  have  ever 
seen,  or  any  that  we  deem  admissible,  can  the  restraint  imposed  by 
the  State  of  Louisiana  upon  the  exercise  of  their  trade  by  the 
butchers  of  New  Orleans  be  held  to  be  a  deprivation  of  property 
within  the  meaning  of  that  provision. 

"Nor  shall  any  State  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws." 

In  the  light  of  the  history  of  these  amendments,  and  the  per- 
vading purpose  of  them,  which  we  have  already  discussed,  it  is  not 
difficult  to  give  a  meaning  to  this  clause.  The  existence  of  laws  in 
the  States  where  the  newly  emancipated  negroes  resided,  which 
discriminated  with  gross  injustice  and  hardship  against  them  as  a 
class,  was  the  evil  to  be  remedied  by  this  clause,  and  by  it  such 
laws  are  forbidden. 

If,  however,  the  States  did  not  conform  their  laws  to  its  require- 
ments, then  by  the  fifth  section  of  the  article  of  amendment  Con- 
gress was  authorized  to  enforce  it  by  suitable  legislation.  We 
doubt  very  much  whether  any  action  of  a  State  not  directed  by  way 
of  discrimination  against  the  negroes  as  a  class,  or  on  account  of 
their  race,  will  ever  be  held  to  come  within  the  purview  of  this 
provision.  It  is  so  clearly  a  provision  for  that  race  and  that  emer- 
gency, that  a  strong  case  would  be  necessary  for  its  application  to 
any  other.  But  as  it  is  a  State  that  is  to  be  dealt  with,  and  not 
alone  the  validity  of  its  laws,  we  may  safely  leave  that  matter  until 
Congress  shall  have  exercised  its  power,  or  some  case  of  State  op- 
pression, by  denial  of  equal  justice  in  its  courts,  shall  have  claimed 
a  decision  at  our  hands.  We  find  no  such  case  in  the  one  before  us, 
and  do  not  deem  it  necessary  to  go  over  the  argument  again,  as  it 
may  have  relation  to  this  particular  clause  of  the  amendment. 

In  the  early  history  of  the  organization  of  the  government,  its 
statesmen  seem  to  have  divided  on  the  line  which  should  separate 


510  CASES    ON    CONSTITUTIONAL    LAW. 

the  powers  of  the  National  government  from  those  of  the  State 
governments,  and  though  this  line  has  never  heen  very  well  defined 
in  public  opinion,  such  a  division  has  continued  from  that  day  to 
this. 

The  adoption  of  the  first  eleven  amendments  to  the  Constitution 
so  soon  after  the  original  instrument  was  accepted,  shows  a  prevail- 
ing sense  of  danger  at  that  time  from  the  Federal  power.  And  it 
cannot  be  denied  that  such  a  jealousy  continued  to  exist  with  many 
patriotic  men  until  the  breaking  out  of  the  late  civil  war.  It  was 
then  discovered  that  the  true  danger  to  the  perpetuity  of  the  IJnion 
was  in  the  capacity  of  the  State  organizations  to  combine  and  con- 
centrate all  the  powers  of  the  State,  and  of  contiguous  States,  for 
a  determined  resistance  to  the  General  Government. 

Unquestionably  this  has  given  great  force  to  the  argument,  and 
added  largely  to  the  number,  of  those  who  believe  in  the  necessity 
of  a  strong  National  government. 

But,  however  pervading  this  sentiment,  and  however  it  may  have 
contributed  to  the  adoption  of  the  amendments  we  have  been  con- 
sidering, we  do  not  see  in  those  amendments  any  purpose  to  destroy 
the  main  features  of  the  general  system.  Under  the  pressure  of 
all  the  excited  feeling  growing  out  of  the  war,  our  statesmen  have 
still  believed  that  the  existence  of  the  States  with  powers  for 
domestic  and  local  government,  including  the  regulation  of  civil 
rights — the  rights  of  person  and  of  property — was  essential  to  the 
perfect  working  of  our  complex  form  of  government,  though  they 
may  have  thought  proper  to  impose  additional  limitations  on  the 
States,  and  to  confer  additional  power  on  that  of  the  Nation. 

But  whatever  fluctuations  may  be  seen  in  the  history  of  public 
opinion  on  this  subject  during  the  period  of  our  national  existence, 
we  think  it  will  be  found  that  this  court,  so  far  as  its  functions 
required,  has  always  held  with  a  steady  and  even  hand  the  balance 
between  State  and  Federal  power,  and  we  trust  that  such  may  con- 
tinue to  be  the  history  of  its  relation  to  that  subject  so  long  as  it 
shall  have  duties  to  perform  which  demand  of  it  a  construction  of 
the  Constitution,  or  any  of  its  parts. 

The  judgments  of  the  Supreme  Court  of  Louisiana  tJi  these  cases 
are  affirmed. 

[Chief  Justice  Chase  and  Justices  Field,  Swayne,  and 
Bkadley  dissented.     The  last  three  delivered  opinions.] 

Note. — In  1887  Mr.  Justice  Miller  made  the  following  statement 
in  the  nature  of  a  defense  of  his  opinion  in  this  case: 


STRAUDER  v.  WEST  VIRGINIA.  511 

"Although  this  opinion  did  not  meet  the  approval  of  four  out 
of  nine  of  the  judges  on  some  of  the  points  on  which  it  rested, 
yet  public  sentiment,  as  found  in  the  press  and  in  the  universal 
acquiescence  which  it  received,  accepted  it  with  great  unanimity; 
and  although  there  were  intimations  that  in  the  legislative  branches 
of  the  Government  the  opinion  would  be  reviewed  and  criticised 
unfavorably,  no  such  thing  has  occurred  in  the  fifteen  years  which 
have  elapsed  since  it  was  delivered.  And  while  the  question  of  the 
construction  of  these  amendments,  and  particularly  the  Fourteenth, 
has  often  been  before  the  Supreme  Court  of  the  United  States,  no 
attempt  to  override  or  disregard  this  elementary  decision  of  the 
effect  of  the  three  new  constitutional  amendments  upon  the  rela- 
tions of  the  State  governments  to  the  Federal  government  has  been 
made;  and  it  may  be  considered  now  as  settled  that,  with  the 
exception  of  the  specific  provisions  in  them  for  the  protection  of 
the  personal  rights  of  the  citizens  and  people  of  the  United  States, 
and  the  necessary  restrictions  upon  the  power  of  the  States  for  that 
purpose,  with  the  additions  to  the  powers  of  the  General  Govern- 
ment to  enforce  these  provisions,  no  substantial  change  has  been 
made.  The  necessity  of  the  great  powers,  conceded  by  the  Consti- 
tution originally  to  the  Federal  Government,  and  the  equal 
necessity  of  the  autonomy  of  the  States  and  their  power  to  regulate 
their  domestic  affeirs,  remain  as  the  great  features  of  our  complex 
form  of  government."  Miller,  Lectures  on  the  Constitution  of  the 
United  States,  411. 


STEAUDEE  v.  WEST  VIEGINIA. 

100  U.  S.,  303.     Decided  1879. 

Error  to  the  Supreme  Court  of  Appeals  of  the  State  of  West 
Virginia. 

The  facts  are  stated  in  the  opinion  of  the  court.     .     .     . 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  a  colored  man,  was  indicted  for  murder  in 
the  Circuit  Court  of  Ohio  County,  in  West  Virginia,  on  the  20th 
of  October,  1874,  and  upon  trial  was  convicted  and  sentenced. 
The  record  was  then  removed  to  the  Supreme  Court  of  the  State, 
and  there  the  judgment  of  the  Circuit  Court  was  aflSrmed.  The 
present  case  is  a  writ  of  error  to  that  court,  and  it  is  now,  in  sub- 


512  CASES    ON    CONSTITUTIONAL    LAW. 

stance,  averred  that  at  the  trial  in  the  State  court  the  defendant 
(now  plaintiff  in  error)  was  denied  rights  to  which  he  was  entitled 
under  the  Constitution  and  laws  of  the  United  States. 

In  the  Circuit  Court  of  the  State,  before  the  trial  of  the  indict- 
ment was  commenced,  the  defendant  presented  his  petition,  verified 
by  his  oath,  praying  for  a  removal  of  the  cause  into  the  Circuit 
Court  of  the  United  States,  assigning,  as  ground  for  the  removal, 
that,  "by  virtue  of  the  laws  of  the  State  of  West  Virginia  no 
colored  man  was  eligible  to  be  a  member  of  the  grand  jury  or  to 
serve  on  a  petit  jury  in  the  State;  that  white  men  are  so  eligible, 
and  that  by  reason  of  his  being  a  colored  man  and  having  been 
a  slave,  he  had  reason  to  believe,  and  did  believe,  he  could  not 
have  the  full  and  equal  benefit  of  all  laws  and  proceedings  in  the 
State  of  West  Virginia  for  the  security  of  his  person  as  is  enjoyed 
by  white  citizens,  and  that  he  had  less  chance  of  enforcing  in  the 
courts  of  the  State  his  rights  on  the  prosecution,  as  a  citizen  of  the 
United  States,  and  that  the  probabilities  of  a  denial  of  them  to 
him  as  such  citizen  on  every  trial  which  might  take  place  on  the 
indictment  in  the  courts  of  the  State  were  much  more  enhanced 
than  if  he  was  a  white  man."  This  petition  was  denied  by  the 
State  court,  and  the  cause  was  forced  to  trial. 

Motions  to  quash  the  venire,  "because  the  law  under  which  it 
was  issued  was  unconstitutional,  null,  and  void,"  and  successive 
motions  to  challenge  the  array  of  the  panel,  for  a  new  trial,  and  in 
arrest  of  judgment  were  then  made,  all  of  which  were  overruled 
and  made  by  exceptions  parts  of  the  record. 

The  law  of  the  State  to  which  reference  was  made  in  the  petition 
for  removal  and  in  the  several  motions  was  enacted  on  the  12th 
of  March,  1873  (Acts  of  1872-73,  p.  102),  and  it  is  as  follows: 
"All  white  male  persons  who  are  twenty-one  years  of  age  and  who 
are  citizens  of  this  State  shall  be  liable  to  serve  as  jurors,  except 
as  herein  provided."     The  persons  excepted  are  State  officials. 

In  this  court,  several  errors  have  been  assigned,  and  the  con- 
trolling questions  underlying  them  all  are,  first,  whether,  by  the 
Constitution  and  laws  of  the  United  States,  every  citizen  of  the 
United  States  has  a  right  to  a  trial  of  an  indictment  against  him 
by  a  jury  selected  and  impanelled  without  discrimination  against 
his  race  or  color,  because  of  race  or  color;  and,  second,  if  he  has 
such  a  right,  and  is  denied  its  enjoyment  by  the  State  in  which 
he  is  indicted,  may  he  cause  the  case  to  be  removed  into  the  Circuit 
Court  of  the  United  States? 

It  is  to  be  observed  that  the  first  of  these  questions  is  not  whether 


STRAUDER  v.  WEST  VIRGINIA.  513 

a  colored  man,  when  an  indictment  has  been  preferred  against  him, 
has  a  right  to  a  grand  or  a  petit  jury  composed  in  whole  or  in  part 
of  persons  of  his  own  race  or  color,  but  it  is  whether,  in  the  com- 
position or  selection  of  jurors  by  whom  he  is  to  be  indicted  or 
tried,  all  persons  of  his  race  or  color  may  be  excluded  by  law,  solely 
because  of  their  race  or  color,  so  that  by  no  possibility  can  any 
colored  man  sit  upon  the  jury.     .     .     . 

This  [the  Fourteenth  Amendment]  is  one  of  a  series  of  constitu- 
tional provisions  having  a  common  purpose;  namely,  securing  to 
a  race  recently  emancipated,  a  race  that  through  many  generations 
had  been  held  in  slavery,  all  the  civil  rights  that  the  superior  race 
enjoy.  The  true  spirit  and  meaning  of  the  amendments,  as  we 
said  in  the  Slaughter-House  Cases  (16  Wall.,  36),  cannot  be  under- 
stood without  keeping  in  view  the  history  of  the  times  when  they 
were  adopted,  and  the  general  objects  they  plainly  sought  to  accom- 
plish. At  the  time  when  they  were  incorporated  into  the  Consti- 
tution, it  required  little  knowledge  of  human  nature  to  anticipate 
that  those  who  had  long  been  regarded  as  an  inferior  and  subject 
race  would,  when  suddenly  raised  to  the  rank  of  citizenship,  be 
looked  upon  with  jealousy  and  positive  dislike,  and  that  State  laws 
might  be  enacted  or  enforced  to  perpetuate  the  distinctions  that 
had  before  existed.  Discriminations  against  them  had  been'  habit- 
ual. It  was  well  known  that  in  some  States  laws  making  such 
discriminations  then  existed,  and  others  might  well  be  expected. 
The  colored  race,  as  a  race,  was  abject  and  ignorant,  and  in  that 
condition  was  unfitted  to  command  the  respect  of  those  who  had 
superior  intelligence.  Their  training  had  left  them  mere  children, 
and  as  such  they  needed  the  protection  which  a  wise  government 
extends  to  those  who  are  unable  to  protect  themselves.  They 
especially  needed  protection  against  unfriendly  action  in  the  States 
where  they  were  resident.  It  was  in  view  of  these  considerations 
the  Fourteenth  Amendment  was  framed  and  adopted.  It  was 
designed  to  assure  to  the  colored  race  the  enjoyment  of  all  the 
civil  rights  that  under  the  laiw  are  enjoyed  by  white  persons,  and 
to  give  to  that  race  the  protection  of  the  general  government,  in 
that  enjoyment,  whenever  *it  should  be  denied  by  the  States.  It 
not  only  gave  citizenship  and  the  privileges  of  citizenship  to  persons 
of  color,  but  it  denied  to  any  State  the  power  to  withhold  from  them 
the  equal  protection  of  the  laws,  and  authorized  Congress  to  en- 
force its  provisions  by  appropriate  legislation.  .  .  .  [Here 
follow  citations  from  the  Slaughter-House  Cases,  16  Wallace,  36]. 

If  this  is  the  spirit  and  meaning  of  the  amendment,  whether  it 


514  CASES    ON    CONSTITUTIONAL    LAW. 

means  more  or  not,  it  is  to  be  construed  liberally,  to  carry  out  the 
purposes  of  its  framers.  It  ordains  that  no  State  shall  make  or 
enforce  any  laws  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States  (evidently  referring  to  the  newly 
made  citizens,  who,  being  citizens  of  the  United  States,  are  declared 
to  be  also  citizens  of  the  State  in  which  they  reside).  It  ordains 
that  no  State  shall  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law,  or  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws.  What  is  this  but  declar- 
ing that  the  law  in  the  States  shall  be  the  same  for  the  black  as 
for  the  white;  that  all  persons,  whether  colored  or  white,  shall 
stand  equal  before  the  laws  of  the  States,  and,  in  regard  to  the 
colored  race,  for  whose  protection  the  amendment  was  primarily 
designed,  that  no  discrimination  shall  be  made  against  them  by 
law  because  of  their  color?  The  words  of  the  amendment,  it  is 
true,  are  prohibitory,  but  they  contain  a  necessary  implication  of 
a  positive  immunity,  or  right,  most  valuable  to  the  colored  race, — 
the  right  to  exemption  from  unfriendly  legislation  against  them 
distinctively  as  colored, — exemption  from  legal  discriminations, 
implying  inferiority  in  civil  society,  lessening  the  security  of  their 
enjoyment  of  the  rights  which  others  enjoy,  and  discriminations 
which  are  steps  towards  reducing  them  to  the  condition  of  a  subject 
race. 

That  the  "West  Virginia  statute  respecting  juries — the  statute 
that  controlled  the  selection  of  the  grand  and  petit  jury  in  the  case 
of  the  plaintiff  in  error — is  such  a  discrimination  ought  not  to  be 
doubted.  Nor  would  it  be  if  the  persons  excluded  by  it  were  white 
men.  If  in  those  States  where  the  colored  people  constitute  a 
majority  of  the  entire  population  a  law  should  be  enacted  excluding 
all  white  men  from  jurj'  service,  thus  denying  to  them  the  privilege 
of  participating  equally  with  the  blacks  in  the  administration  of 
justice,  we  apprehend  no  one  would  be  heard  to  claim  that  it  would 
not  be  a  denial  to  white  men  of  the  equal  protection  of  the  laws. 
Nor  if  a  law  should  be  passed  excluding  all  naturalized  Celtic 
Irishmen,  would  there  be  any  doubt  of  its  inconsistency  with  the 
spirit  of  the  amendment.  The  xery  fact  that  colored  people  are 
singled  out  and  expressly  denied  by  a  statute  all  right  to  participate 
in  the  administration  of  the  law,  as  jurors,  because  of  their  color, 
though  they  are  citizens,  and  may  be  in  other  respects  fully  quali- 
fied, is  practically  a  brand  upon  them,  affixed  by  the  law,  an  asser- 
tion of  their  inferiority,  and  a  stimulant  to  that  race  prejudice 


STRAUDER  v.  WEST  VIRGINIA.  515 

which  is  an  impediment  to  securing  to  individuals  of  the  race  that 
equal  justice  which  the  law  aims  to  secure  to  all  others. 

The  right  to  a  trial  by  jury  is  guaranteed  to  every  citizen  of 
West  Virginia  by  the  Constitution  of  that  State,  and  the  constitu- 
tion of  juries  is  a  very  essential  part  of  the  protection  such  a  mode 
of  trial  is  intended  to  secure.  The  very  idea  of  a  jury  is  a  body 
of  men  composed  of  the  peers  or  equals  of  the  person  whose  rights 
it  is  selected  or  summoned  to  determine;  that  is,  of  his  neighbors, 
fellows,  associates,  persons  having  the  same  legal  status  in  society 
as  that  which  he  holds.  Blackstone,  in  his  Commentaries,  says, 
"The  right  of  trial  by  jury,  or  the  country,  is  a  trial  by  the  peers 
of  every  Englishman,  and  is  the  grand  bulwark  of  his  liberties,  and 
is  secured  to  him  by  the  Great  Charter."  It  is  also  guarded  by 
statutory  enactments  intended  to  make  impossible  what  Mr.  Ben- 
tham  called  "packing  juries."  It  is  well  known  that  prejudices 
often  exist  against  particular  classes  in  the  community,  which  sway 
the  judgment  of  jurors,  and  which,  therefore,  operate  in  some  cases 
to  deny  to  persons  of  those  classes  the  full  enjoyment  of  that  pro- 
tection which  others  enjoy.  Prejudice  in  a  local  community  is  held 
to  be  a  reason  for  a  change  of  venue.  The  framers  of  the  con- 
stitutional amendment  must  have  known  full  well  the  existence 
of  such  prejudice  and  its  likelihood  to  continue  against  the  manu- 
mitted slaves  and  their  race,  and  that  knowledge  was  doubtless  a 
motive  that  led  to  the  amendment.  By  their  manumission  and 
citizenship  the  colored  race  became  entitled  to  the  equal  protection 
of  the  laws  of  the  States  in  which  they  resided;  and  the  apprehen- 
sion that  through  prejudice  they  might  be  denied  that  equal  pro- 
tection, that  is,  that  there  might  be  discrimination  against  them, 
was  the  inducement  to  bestow  upon  the  national  government  the 
power  to  enforce  the  provision  that  no  State  shall  deny  to  them 
the  equal  protection  of  the  laws.  Without  the  apprehended  exist- 
ence of  prejudice  that  portion  of  the  amendment  would  have  been 
unnecessary,  and  it  might  have  been  left  to  the  States  to  extend 
equality  of  protection. 

In  view  of  these  considerations,  it  is  hard  to  see  why  the  statute 
of  West  Virginia  should  not  be  regarded  as  discriminating  against 
a  colored  man  when  he  is  put  upon  trial  for  an  alleged  criminal 
offence  against  the  State.  It  is  not  easy  to  comprehend  how  it 
can  be  said  that  while  every  white  man  is  entitled  to  a  trial  by  a 
jury  selected  from  persons  of  his  own  race  or  color,  or,  rather, 
selected  without  discrimination  against  his  color,  and  a  negro  is 
not,  the  latter  is  equally  protected  by  the  law  with  the  former.     Is 


516  CASES    ON    CONSTITUTIONAL    LAW. 

not  protection  of  life  and  liberty  against  race  or  color  prejudice  a 
right,  a  legal  right,  under  the  constitutional  amendment?  And  how 
can  it  be  maintained  that  compelling  a  colored  man  to  submit  to  a 
trial  for  his  life  by  a  Jury  drawn  from  a  panel  from  which  the  State 
has  expressly  excluded  every  man  of  his  race,  because  of  color  alone, 
however  well  qualified  in  other  respects,  is  not  a  denial  to  him  of 
equal  legal  protection? 

We  do  not  say  that  within  the  limits  from  which  it  is  not  ex- 
cluded by  the  amendment,  a  State  may  not  prescribe  the  qualifi- 
cations of  its  jurors,  and  in  so  doing  make  discriminations.  It  may 
confine  the  selection  to  males,  to  freeholders,  to  citizens,  to  per- 
sons within  certain  ages,  or  to  persons  having  educational  qualifi- 
cations. We  do  not  believe  the  Fourteenth  Amendment  was  ever 
intended  to  prohibit  this.  Looking  at  its  historj',  it  is  clear  it 
had  no  such  purpose.  Its  aim  was  against  discrimination  because 
of  race  or  color.  As  we  have  said  more  than  once,  its  design  was 
to  protect  an  emancipated  race,  and  to  strike  down  all  possible 
legal  discriminations  against  those  who  belong  to  it.  To  quote 
further  from  16  Wall.,  supra:  "In  gi\'ing  construction  to  any  of 
these  articles  [amendments],  it  is  necessary  to  keep  the  main 
purpose  steadily  in  view."  "It  is  so  clearly  a  provision  for  that 
race  and  that  emergency,  that  a  strong  case  would  be  necessary  for 
its  application  to  any  other."  We  are  now  called  upon  to  affirm 
or  deny  that  it  had  other  purposes. 

The  Fourteenth  Amendment  makes  no  attempt  to  enumerate 
the  rights  it  designed  to  protect.  It  speaks  in  general  terms,  and 
those  are  as  comprehensive  as  possible.  Its  language  is  prohibitory; 
but  every  prohibition  implies  the  existence  of  rights  and  immuni- 
ties, prominent  among  which  is  an  immunity  from  inequality  of 
legal  protection,  either  for  life,  liberty,  or  property.  Any  State 
action  that  denies  this  immunity  to  a  colored  man  is  in  conflict 
with  the  Constitution. 

Concluding,  therefore,  that  the  statute  of  West  Virginia,  dis- 
criminating in  the  selection  of  jurors,  as  it  does,  against  negroes 
because  of  their  color,  amounts  to  a  denial  of  the  equal  protection 
of  the  laws  to  a  colored  man  when  he  is  put  upon  trial  for  an 
alleged  offense  against  the  State,  it  remains  only  to  be  con- 
sidered whether  the  power  of  Congress  to  enforce  the  provisions  of 
the  Fourteenth  Amendment  by  appropriate  legislation  is  sufficient 
to  justify  the  enactment  of  sect.  641  of  the  Eevised  Statutes. 

A  right  or  an  immunity,  whether  created  by  the  Constitution 
or  only  guaranteed  by  it,  even  without  any  express  delegation  of 


STRAUDER  v.  WEST  VIRGINIA.  517 

power,  may  be  protected  by  Congress.  Prigg  v.  The  Common- 
wealth of  Pennsylvania,  16  Pet.,  539.  So  in  United  States  v. 
Eeese  (92  U.  S.,  2U)  it  was  said  by  the  Chief  Justice  of  this  court: 
"Rights  and  immunities  created  by  or  dependent  upon  the  Consti- 
tution of  the  United  States  can  be  protected  by  Congress.  The 
form  and  manner  of  the  protection  may  be  such  as  Congress  in 
the  legitimate  exercise  of  its  legislative  discretion  shall  provide. 
These  may  be  varied  to  meet  the  necessities  of  the  particular  right 
to  be  protected."  But  there  is  express  authority  to  protect  the 
rights  and  immunities  referred  to  in  the  Fourteenth  Amendment, 
and  to  enforce  observance  of  them  by  appropriate  congressional 
legislation.  And  one  very  "efficient  and  appropriate  mode  of  extend- 
ing such  protection  and  securing  to  a  party  the  enjoyment  of  the 
right  or  immunity,  is  a  law  providing  for  the  removal  of  his  case 
from  a  State  court,  in  which  the  right  is  denied  by  the  State 
law,  into  a  Federal  court,  where  it  will  be  upheld.  This  is  an 
ordinary  mode  of  protecting  rights  and  immunities  conferred  by 
the  Federal  Constitution  and  laws.  Sec.  641  is  such  a  provision. 
-  .  .  This  act  puts  in  the  form  of  a  statute  what  had  been 
substantially  ordained  by  the  constitutional  amendftient.  It  was 
a  step  toward  enforcing  the  constitutional  provisions.  Sec.  6-il 
was  an  advanced  step,  fully  warranted,  we  think,  by  ihb  fifth 
section  of  the  Fourteenth  Amendment. 

We  have  heretofore  considered  and  affirmed  the  constitutional 
power  of  Congress  to  authorize  the  removal  from  State  courts  into 
the  circuit  courts  of  the  United  States,  before  trial,  of  criminal 
prosecutions  for  alleged  offenses  against  the  laws  of  the  State, 
when  the  defense  presents  a  Federal  question,  or  when  a  right 
under  the  Federal  Constitution  or  laws  is  involved.  Tennessee  v. 
Davis,  supra,  p.  257.  It  is  unnecessary  now  to  repeat  what  we 
there  said. 

That  the  petition  of  the  plaintiff  in  error,  filed  by  him  in  the 
State  court  before  the  trial  of  his  case,  made  a  case  for  removal 
into  the  Federal  Circuit  Court,  under  sect.  641,  is  very  plain,  if, 
by  the  constitutional  amendment  and  sect.  1977  of  the  Eevised 
Statutes,  he  was  entitled  to  immunity  from  discrimination  against 
him  in  the  selection  of  jurors,  because  of  their  color,  as  we  have 
endeavored  to  show  that  he  was.  It  set  forth  sufficient  facts  to  ex- 
hibit a  denial  of  that  immunity,  and  a  denial  by  the  statiite  law  of 
the  State. 

There  was  error,  therefore,  in  proceeding  to  the  trial  of  the  in- 
dictment against  him  after  his  petition  was  filed,  as  also  in  over- 


518  CASES    ON    CONSTITUTIONAL   LAW. 

ruling  his  challenge  to  the  array  of  the  jury,  and  in  refusing  to 
quash  the  panel. 

The  judgment  of  the  Supreme  Court  of  West  Virginia  will  be 
reversed,  and  the  case  remitted  with  instructions  to  reverse  the 
judgment  of  the  Circuit  Court  of  Ohio  County;  and  it  is 

So  ordered 

[Jl'stice  Field  and  Justice  Clifford  dissented.] 


CIVIL  EIGHTS  CASES. 

UNITED    STATES    v.    STANLEY.      UNITED    STATES    v. 

EYAN.     UNITED  STATES  v.  NICHOLS.     UNITED 

STATES    V.    SINGLETON.      EOBINSON    and 

WIFE  T.  MEMPHIS  AND  CHAELESTON 

EAILEOAD  COMPANY. 

109  U.  S.,  3.    Decided  1883. 

These  cases  are  all  founded  on  the  first  and  second  sections  of 
the  Act  of  Congress,  known  as  the  Civil  Eights  Act,  passed  March 
1st,  1875,  entitled  "An  Act  to  protect  all  citizens  in  their  civil  and 
legal  rights."  18  Stat.,  335.  Two  of  the  cases,  those  against 
Stanley  and  Nichols,  were  indictments  for  denying  to  persons  of 
color  the  accommodations  and  privileges  of  an  inn  or  hotel;  two 
of  them,  those  against  Eyan  and  Singleton,  were,  one  an  informa- 
tion, the  other  an  indictment,  for  denying  to  individuals  the  privi- 
leges and  accommodations  of  a  theater,  the  information  against 
Eyan  being  for  refusing  a  colored  person  a  seat  in  the  dress  circle 
of  Maguire's  theatre  in- San  Francisco;  and  the  indictment  against 
Singleton  was  for  denying  to  another  person,  whose  color  was  not 
stated,  the  full  enjoyment  of  the  accommodations  of  the  theatre 
known  as  the  Grand  Opera  House  in  New  York,  "said  denial  not 
being  made  for  any  reasons  by  law  applicable  to  citizens  of  every 
race  and  color,  and  regardless  of  any  previous  condition  of  servi- 
tude." The  case  of  Eobinson  and  wife  against  the  Memphis  & 
Charleston  E.  E.  Company  was  an  action  brought  in  the  Circuit 
Court  of  the  United  States  for  the  Western  District  of  Tennessee, 
to  recover  the  penalty  of  five  hundred  dollars  given  by  the  second 
section  of  the  act;  and  the  gravamen  was  the  refusal  by  the  con- 
ductor of  the  railroad  company  to  allow  the  wife  to  ride  in  the 
ladies'  car  for  the  reason  as  stated  in  one  of  the  counts,  that  she 
was  a  person  of  African  descent.    The  jury  rendered  a  verdict  for 


CIVIL  RIGHTS  CASES.  519 

the  def^ndants  in  this  case,  upon  the  merits,  under  a  charge  of 
the  court  to  which  a  bill  of  exceptions  was  taken  by  the  plaintiffs. 
The  case  was  tried  on  the  assumption  by  both  parties  of  the  validity 
of  the  act  of  Congress;  and  the  principal  point  made  by  the  ex- 
ceptions was,  that  the  Judge  allowed  evidence  to  go  to  the  jury 
tending  to  show  that  the  conductor  had  reason  to  suspect  that  the 
plaintiff,  the  wife,  was  an  improper  person,  because  she  was  in 
company  with  a  young  man  whom  he  supposed  to  be  a  white  man, 
and  on  that  account  inferred  that  there  was  some  improper  con- 
nection between  them;  and  the  judge  charged  the  jury,  in  sub- 
stance, that  if  this  was  the  conductor's  bona  fide  reason  for  exclud- 
ing the  woman  from  the  car  they  might  take  it  into  consideration 
on  the  question  of  the  liability  of  the  company.  The  case  was 
brought  here  by  writ  of  error  at  the  suit  of  the  plaintiffs.  The 
cases  of  Stanley,  Nichols,  and  Singleton,  came  up  on  certificates 
of  division  of  opinion  between  the  judges  below  as  to  the  consti- 
tutionality of  the  first  and  second  sections  of  the  act  referred  to; 
and  the  case  of  Ryan,  on  a  writ  of  error  to  the  judgment  of  the 
Circuit  Court  for  the  District  of  California  sustaining  a  demurrer 
to  the  information. 

The  Stanley,  Ryan,  Nichols,  and  Singleton  cases  were  sub- 
mitted together,  by  the  Solicitor-General  at  the  last  term  of  court, 
on  the  7th  day  of  November,  1883.  There  were  no  appearances 
and  no  briefs  filed  for  the  defendants. 

The  Robinson  case  was  submitted  on  the  briefs  at  the  last  term, 
on  the  29th  day  of  March,  1883.     ... 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court.  After 
stating  the  facts  in  the  above  language  he  continued: 

It  is  obvious  that  the  primary  and  important  question  in  all  the 
cases  is  the  constitutionality  of  the  law:  for  if  the  law  is  unconsti- 
tutional none  of  the  prosecutions  can  stand. 

The  sections  of  the  law  referred  to  provide  as  follows: 

"Sec.  1.  That  all  persons  within  the  jurisdiction  of  the  United 
States  shall  be  entitled  to  the  full  and  equal  enjoyment  of  the  ac- 
commodations, advantages,  facilities,  and  privileges  of  inns,  public 
conveyances  on  land  or  water,  theatres,  and  other  places  of  public 
amusement;  subject  only  to  the  conditions  and  limitations  estab- 
lished by  law,  and  applicable  alike  to  citizens  of  every  race  and 
color,  regardless  of  any  previous  condition  of  servitude. 

"Sec.  2.  That  any  person  who  shall  violate  the  foregoing  section 
by  denying  to  any  citizen,  except  for  reasons  by  law  applicable  to 
citizens  of  every  race  and  color,  and  regardless  of  any  previous 


520  CASES    ON    CONSTITUTIONAL   LAW. 

condition  of  servitude,  the  full  enjoyment  of  any  of  the, accom- 
modations, advantages,  facilities,  or  privileges  in  said  section  enum- 
erated, or  by  aiding  or  inciting  such  denial,  shall  for  every  such 
offense  forfeit  and  pay  the  sum  of  five  hundred  dollars  to  the  per- 
son aggrieved  thereby,  to  be  recovered  in  an  action  of  debt,  with 
full  costs;  and  shall  also,  for  every  such  offense,  be  deemed  guilty 
of  a  misdemeanor,  and,  upon  conviction  thereof,  shall  be  fined  not 
less  than  five  hundred  nor  more  than  one  thousand  dollars,  or  shall 
be  imprisoned  not  less  than  thirty  days  nor  more  than  one  year: 
Provided,  That  all  persons  may  elect  to  sue  for  the  penalty  afore- 
said, or  to  proceed  under  their  rights  at  common  law  and  by  State 
statutes;  and  having  so  elected  to  proceed  in  the  one  mode  or  the 
other,  their  right  to  proceed  in  the  other  jurisdiction  shall  be 
barred.  But  this  provision  shall  not  apply  to  criminal  proceedings, 
either  under  this  Act  or  the  criminal  law  of  any  State:  And  pro- 
vided further,  That  a  judgment  for  the  penalty  in  favor  of  the  party 
aggrieved,  or  a  judgment  upon  an  indictment,  shall  be  a  bar  to 
either  prosecution  respectively." 

Are  these  sections  constitutional?  The  first  section,  which  is 
the  principal  one,  cannot  be  fairly  understood  without  attending 
to  the  last  clause,  which  qualifies  the  preceding  part. 

The  essence  of  the  law  is,  not  to  declare  broadly  ihat  all  per- 
sons shall  be  entitled  (to  the  full  and  equal  enjoyment  of  the  ac- 
commodations, advantages,  facilities,  and  privileges  of  inns,  public 
conveyances,  and  theatres;  but  that  such  enjoyment  shall  not  be 
subject  to  any  conditions  applicable  only  to  citizens  of  a  particular 
race  or  color,  or  who  had  been  in  a  previous  condition  of  servitude. 
In  other  words,  it  is  the  purpose  of  the  law  to  declare  that,  in  the 
enjoyment  of  the  accommodations  and  privileges  of  inns,  public 
conveyances,  theatres,  and  other  places  of  public  amusement,  no 
distinction  shall  be  made  between  citizens  of  different  race  or  color, 
or  between  those  who  have,  and  those  who  have  not,  been  slaves. 
Its  effect  is  to  declare,  that  in  all  inns,  public  conveyances,  and 
places  of  amusement,  colored  citizens,  whether  formerly  slaves  or 
not,  and  citizens  of  other  races,  shall  have  the  same  accommoda- 
tions and  privileges  in  all  inns,  public  conveyances,  and  places  of 
amusement  as  are  enjoyed  by  white  citizens;  and  vice  versa.  The 
second  section  makes  it  a  penal  offense  in  any  person  to  deny  to 
any  citizen  of  any  race  or  color,  regardless  of  previous  servitude, 
any  of  the  accommodations  or  privileges  mentioned  in  the  first 
section. 

Has  Congress  constitutional  power  to  make  such  a  law?  Of 
course,  no  one  will  contend  that  the  power  to  pass  it  was  contained 
in  the  Constitution  before  the  adoption  of  the  last  three  amend- 


CIVIL  RIGHTS  CASES.  521 

men'ts.  The  power  is  sought,  first,  in  the  Fourteenth  Amendment, 
and  the  views  and  arguments  of  distinguished  Senators,  advanced 
whilst  the  law  was  under  consideration,  claiming  authority  to  pass 
it  by  virtue  of  that  amendment,  are  the  principal  arguments  ad- 
duced in  favor  of  the  power.  We  have  carefully  considered  those 
arguments,  as  was  due  to  the  eminent  ability  of  those  who  put 
them  forward,  and  have  felt,  in  all  its  force,  the  weight  of  authority 
which  always  invests  a  law  that  Congress  deems  itself  competent 
to  pass.  But  the  responsibility  of  an  independent  judgment  is 
now  thrown  upon  this  court;  and  we  are  bound  to  exercise  it  ac- 
cording to  the  best  lights  we  have. 

The  first  section  of  the  Fourteenth  Amendment  (which  is  the 
one  relied  on),  after  declaring  who  shall  be  citizens  of  the  United 
States,  and  of  the  several  States,  is  prohibitory  in  its  character, 
and  prohibitory  upon  the  States.    It  declares  that: 

"No  State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law;  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws." 

It  is  State  action  of  a  particular  character  that  is  prohibited. 
Individual  invasion  of  individual  rights  is  not  the  subject-matter 
of  the  amendment.  It  has  a  deeper  and  broader  scope.  It  nullifies 
and  makes  void  all  State  legislation,  and  State  action  of  every 
kind,  which  impairs  the  privileges  and  immunities  of  citizens  of 
the  United  States,  or  which  injures  them  in  life,  liberty  or  property 
without  due  process  of  law,  or  which  denies  to  any  of  them  the 
equal  protection  of  the  laws.  It  not  only  does  this,  but,  in  order 
that  the  national  will,  thus  declared,  may  not  be  a  mere  brutum 
fulmen,  the  last  section  of  the  amendment  invests  Congress  with 
power  to  enforce  it  by  appropriate  legislation.  To  enforce  what? 
To  enforce  the  prohibition.  To  adopt  appropriate  legislation  for 
correcting,  the  effects  of  such  prohibited  State  laws  and  State  acts, 
and  thus  to  render  them  effectually  null,  void,  and  innocuous. 
This  is  the  legislative  power  conferred  upon  Congress,  and  this  is 
the  whole  of  it.  It  does  not  invest  Congress  with  power  to  legislate 
upon  subjects  which  are  within  the  domain  of  State  legislation; 
but  to  provide  modes  of  relief  against  State  legislation,  or  State 
action,  of  the  kind  referred  to.  It  does  not  authorize  Congress  to 
create  a  code  of  municipal  law  for  the  regulation  of  private  rights; 
but  to  provide  modes  of  redress  against  the  operation  of  State  laws, 
and  the  action  of  State  officers  executive  or  judicial,  when  these 
are  subversive  of  the  fundamental  rights  specified  in  the  amend- 


523  CASES    ON    CONSTITUTIONAL    LAW. 

ment.  Positive  rights  and  privileges  are  undoubtedly  secured  by 
the  Fourteenth  Amendment;  but  they  are  secured  by  way  of  pro- 
hibition against  State  laws  and  State  proceedings  affecting  those 
rights  and  privileges,  and  by  power  given  to  Congress  to  legislate 
for  the  purpose  of  carrying  such  prohibition  into  effect:  and  such 
legislation  must  necessarily  be  predicated  upon  such  supposed 
State  laws  or  State  proceedings,  and  be  directed  to  the  correction 
of  their  operation  and  effect.  A  quite  full  discussion  of  this  aspect 
of  the  amendment  may  be  found  in  United  States  v.  Cruikshank, 
92  TJ.  S.,  542;  Virginia  v.  Eives,  100  U.  S.,  313;  and  Ex  parte 
Virginia,  100  U.  S.,  339. 

An  apt  illustration  of  this  distinction  may  be  found  in  some  of 
(the  provisions  of  the  original  Constitution.  Take  the  subject  of 
contracts,  for  example.  The  Constitutif)n  prohibited  the  States 
from  passing  any  law  impairing  the  obligation  of  contracts.  This 
did  not  give  to  Congress  power  to  provide  laws  for  the  general 
enforcement  of  con-tracts;  nor  power  to  invest  the  courts  of  the 
United  States  with  jurisdiction  over  contracts,  so  as  to  enable 
parties  to  sue  upon  them  in  those  courts.  It  did,  however,  give  the 
power  to  provide  remedies  by  which  the  impairment  of  contracts 
by  State  legislation  might  be  counteracted  and  corrected:  and 
this  power  was  exercised.  The  remedy  which  Congress  actually 
provided  was  that  contained  in  the  25th  section  of  the  Judiciary 
Act  of  1789,  1  Stat.,  85,  giving  to  the  Supreme  Court  of  the  United 
States  jurisdiction  by  writ  of  error  to  review  the  final  decisions  of 
State  courts  whenever  they  should  sustain  the  validity  of  a  State 
statute  or  authority  alleged  to  be  repugnant  to  the  Constitution  or 
laws  of  the  United  States.  By  this  means,  if  a  State  law  was  passed 
impairing  the  obligation  of  a  contract,  and  the  State  tribunals  sus- 
tained the  validity  of  the  law,  the  mischief  could  be  corrected  in 
this  court.  The  legislation  of  Congress,  and  the  proceedings  pro- 
vided for  under  it,  were  corrective  in  their  character.  No  attempt 
was  made  to  draw  into  the  United  States  courts  the  litigation  of 
contracts  generally;  and  no  such  attempt  would  have  been  sus- 
tained. We  do  not  say  that  the  remedy  provided  was  the  only  one 
that  might  have  been  provided  in  that  case.  Probably  Congress 
had  power  to  pass  a  law  giving  to  the  courts  of  the  United  States 
direct  jurisdiction  over  contracts  alleged  to  be  impaired  by  a  State 
law;  and  under  the  broad  provisions  of  the  act  of  March  3d,  1875, 
ch.  137,  18  Stat.,  470,  giving  to  the  circuit  courts  jurisdiction  of 
all  cases  arising  under  the  Constitution  and  laws  of  the  United 
States,  it  is  possible  that  such  jurisdiction  now  exists.  But  under 
that,  or  any  othe^  law,  it  must  appear  as  well  by  allegation,  as 


CIVIL  RIGHTS  CASES.  523 

proof  at  the  trial,  that  the  Constitution  had  been  violated  by  the 
action  of  the  State  legislature.  Some  obnoxious  State  law  passed, 
or  that  might  be  passed,  is  necessary  to  be  assumed  in  order  to  lay 
the  foundation  of  any  federal  remedy  in  the  case;  and  for  the 
very  sufficient  reason,  that  the  constitutional  prohibition  is  against 
State  laws  impairing  the  obligation  of  contracts. 

And  so  in  the  present  case,  until  some   State  law  has  been 
passed,  or  some  State  action  through  its  officers  or  agents  has  been 
taken,  adverse  to  the  rights  of  citizens  sought  to  be  protected  by 
the  Fourteenth  Amendment,  no  legislation  of  the  United  States 
under  said  amendment  nor  any  proceeding  under  such  legislation, 
can  -ba-«alled  into  activity:  for  the  prohibitian&of  the  amendment 
are  against  State  laws  and  acts  done-  under  State  authority.    •  Of 
course,, legislation  may,  and  should  be,  provixied- inr  advance  to 
meet  the  exi^ncy  w4ien  it  arises;  but  it_shojild-ba  adapted  to  the 
mischief  and  wrong  which  the  amendment  was  intended  to  pro- 
vide against;  and  that  is.  State  laws,  or  State  action  of  some  kind, 
adverse  to  the  rights  of  the  citizen  secured  by  the  amendment. 
Such  legislation  cannot  properly  cover  the  whole  domain  of  rights 
appertaining  to  life,  liberty  and  property,  defining  them  and  pro- 
viding for  their  vindication.    Thait  would  be  to  establish  a  code  of 
municipal  law  regulative  of  all  private  rights  between  man  and 
man  in  society.    It  would  be  to  make  Congress  take  the  place  of  \ 
the  State  legislatures  and  to  supersede  them.    It  is  absurd  to  affirm    i 
that,  because  the  rights  of  life,  liberty  and  property  (which  include 
lall  civil  rights  that  men  have),  are  by  the  amendment  sought  to  , 
be  protected  against  invasion  on  the  part  of  the  State  without  due  \ 
process  of  law.  Congress  may  therefore  provide  due  process  of  law  \ 
for  their  vindication  in  every  case;   and  that,  because  the  denial  > 
by  a  State  to  any  persons,  of  the  equal  protection  of  the  laws,  is\ 
prohibited  by  the  amendment,  therefore  Congress  may  establish  I 
laws  for  their  equal  protection.    In  fine,  the  legislation  which  Con- 
gress is  authorized  to  adopt  in  this  behalf  is  not  general  legislation  I 
upon  the  rights  of  the  citizen,  but  corrective  legislation,  that  is, 
such  as  may  be  necessary  and  proper  for  counteracting  such  laws 
as  the  States  may  adopt  or  enforce,  and  which,  by  the  amendment, 
they  are  prohibited  from  making  or  enforcing,  or  such  acts  and 
proceedings  as  the  States  may  commit  or  take,  and  which,  by  the 
amendment,  they  are  prohibited  from  committing  or  taking.    It  is 
not  necessary  for  us  to  state,  if  we  could,  what  legislation  would 
be  proper  for  Congress  to  adopt.    It  is  sufficient  for  us  to  examine 
whether  the  law  in  question  is  of  that  character. 

An  inspection  of  the  law  shows  that  it  makes  no  reference  what- 


624  CASES    ON    CONSTITUTIONAL    LAW. 

ever  to  any  supposed  or  apprehended  violation  of  the  Fourteenth 
Amendment  on  the  part  of  the  States.  It  is  not  predicated  on  any 
such  view.  It  proceeds  ex  diredo  to  declare  that  certain  acts  com- 
mitted by  individuals  shall  be  deemed  offenses,  and  shall  be  prose- 
cuted and  punished  by  proceedings  in  the  courts  of  the  United 
States.  It  does  not  profess  to  be  corrective  of  any  constitutional 
wrong  committed  by  the  States;  it  does  not  make  its  operation  to 
depend  upon  any  such  wrong  committed.  It  applies  equally  to 
cases  arising  in  States  which  have  the  justest  laws  respecting  the 
personal  rights  of  citizens,  and  whose  authorities  are  ever  ready  to 
enforce  such  laws,  as  to  those  which  arise  in  States  that  may  have 
violated  the  prohibition  of  the  amendment.  In  other  words,  it 
steps  into  the  domain  of  local  Jurisprudence,  and  lays  down  rules 
for  the  conduct  of  individuals  in  society  towards  each  other,  and 
imposes  sanctions  for  the  enforcement  of  those  rules,  without  refer- 
ring in  any  manner  to  any  supposed  action  of  the  State  or  its 
authorities. 

If  this  legislation  is  appropriate  for  enforcing  the  prohibitions 
of  the  amendment,  it  is  difficult  to  see  where  it  is  to  stop.  Why 
may  not  Congress  with  equal  show  of  authority  enact  a  code  of 
laws  for  the  enforcemen-t  and  vindication  of  all  rights  of  life,  lib- 
erty, and  property?  If  it  is  supposable  that  the  States  may  deprive 
persons  of  life,  liberty,  and  property  without  due  -process  of  law 
(and  the  amendment  itself  does  not  suppose  this),  why  should  not 
Congress  proceed  at  once  to  prescribe  due  process  of  law  for  the 
protection  of  every  one  of  these  fundamental  rights,  in  every  possi- 
ble case,  as  well  as  to  prescribe  equal  privileges  in  inns,  public 
conveyances,  and  theatres?  The  truth  is,  that  the  implication  of  a 
power  to  legislate  in  this  manner  is  based  upon  the  assumption* 
that  if  the  States  are  forbidden  to  legislate  or  act  in  a  particular 
way  on  a  particular  subject,  and  power  is  conferred  upon  Congress 
to  enforce  the  prohibition,  this  gives  Congress  power  to  legislate 
generally  upon  that  subject,  and  not  merely  power  to  provide 
modes  of  redress  against  such  State  legislation  or  action.  The 
assumption  is  certainly  unsound.  It  is  repugnant  to  the  Tenth 
Amendment  of  the  Constitution,  which  declares  that  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States  respectively  or  to  the 
people. 

We  have  not  overlooked  the  fact  that  the  fourth  section  of  the 
act  now  under  consideration  has  been  held  by  this  court  to  be 
constitutional.  That  section  declares  "that  no  citizen,  possessing 
all  other  qualifications  which  are  or  may  be  prescribed  by  law. 


CIVIL  RIGHTS  CASES.  525 

shall  be  disqualified  for  service  as  grand  or  petit  juror  in  any  court 
of  the  United  States,  or  of  any  State,  on  account  of  race,  color,  or 
previous  condition  of  servitude;  and  any  officer  or  other  person 
charged  with  any  duty  in  the  selection  or  summoning  of  jurors 
who  shall  exclude  or  fail  to  summon  any  citizen  for  the  cause 
aforesaid,  shall,  on  conviction  thereof,  be  deemed  guilty  of  a  mis- 
demeanor, and  be  fined  not  more  than  five  thousand  dollars."  In 
Ex  parte  Virginia,  100  U.  S.,  339,  it  was  held  that  an  indictment 
asrainst  a  State  officer  under  this  section  for  excluding  persons  of 
color  from  the  jury  list  is  sustainable.  But  a  moment's  attention 
to  its  terms  will  show  that  the  section  is  entirely  corrective  in  its 
character.  Disqualifications  for  service  on  juries  are  only  created 
by  the  law,  and  the  first  part  of  the  section  is  aimed  at  certain  dis- 
qualifying laws,  namely,  those  which  make  mere  race  or  color  a 
disqualification;  and  the  second  clause  is  directed  against  those 
who,  assuming  to  use  the  authority  of  the  State  government,  carry 
into  effect  such  a  rule  of  disqualification.  In  the  Virginia  case, 
the  State,  through  its  officer,  enforced  a  rule  of  disqualification 
which  the  law  was  intended  to  abrogate  and  counteract.  Whether 
the  statute-book  of  the  State  actually  laid  down  any  such  rule  of 
disqualification,  or  not,  the  State,  through  its  officer,  enforced  such 
a  rule:  and  it  is  against  such  State  action,  through  its  officers  and 
agents,  that  the  last  clause  of  the  section  is  directed.  This  aspect 
of  the  law  was  deemed  sufficient  to  divest  it  of  any  unconstitu- 
tional character,  and  makes  it  differ  widely  from  the  first  and  sec- 
ond sections  of  the  same  act  which  we  are  now  considering. 

These  sections,  in  the  objectionable  features  before  referred  to, 
are  different  also  from  the  law  ordinarily  called  the  "Civil  Eights 
Bill,"  originally  passed  April  9th,  1866,"  14  Stat.,  27,  ch.  31,  and 
re-enacted  with  some  modifications  in  sections  16,  17,  and  18,  of 
the  Enforcement  Act,  passed  May  31st,  1870,  16  Stat.,  140,  ch. 
114.  That  law,  as  re-enacted,  after  declaring  that  all  persons  with- 
in the  jurisdiction  of  the  United  States  shall  have  the  same  right 
in  every  State  and  Territory  to  make  and  enforce  contracts,  to  sue, 
be  parties,  give  evidence,  and  to  the  full  and  equal  benefit  of  all 
laws  and  proceedings  for  the  security  of  persons  and  property  as  is 
enjoyed  by  white  citizens,  and  shall  be  subject  to  like  punishment, 
pains,  penalties,  taxes,  licenses  and  exactions  of  every  kind,  and 
none  other,  any  law,  statute,  ordinance,  regulation  or  custom  to 
the  contrary  notwithstanding,  proceeds  to  enact,  that  any  person 
who,  under  color  of  any  law,  statute,  ordinance,  regulation,  or  cus- 
tom, shall  subject,  or  cause  to  be  subjected,  any  inhabitant  of  any 
State  or  Territory  to  the  deprivation  of  any  rights  secured  or  pro- 


526  CASES    ON    CONSTITUTIONAL    LAW. 

tected  by  the  preceding  section  (above  quoted),  or  to  different 
punishment,  pains,  or  penalties,  on  account  of  such  person  being 
an  alien,  or  by  reason  of  his  color  or  race,  than  is  prescribed  for 
the  punishment  of  citizens,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  subject  to  fine  and  imprisonment  as  specified  in  the 
act.  This  law  is  clearly  corrective  in  its  character,  intended  to 
counteract  and  furnish  redress  against  State  laws  and  proceedings, 
and  customs  having  the  force  of  law,  which  sanction  the  wrongful 
acts  specified.  In  the  Eevised  Statutes,  it  is  true,  a  very  important 
clause,  to  wit,  the  words  "any  law,  statute,  ordinance,  regulation  or 
custom  to  the  contrary  notwithstanding,"  which  gave  the  de- 
claratory section  its  point  and  effect,  are  omitted;  but  the  penal 
part,  by  which  the  declaration  is  enforced,  and  which  is  really  the 
effective  part  of  the  law,  retains  the  reference  to  State  laws,  by 
making  the  penalty  apply  only  t6  those  who  should  subject  parties 
to  a  deprivation  of  their  rights  under  color  of  any  statute,  ordi- 
nance, custom,  etc.,  of  any  State  or  Territory:  thus  preserving  the 
corrective  character  of  the  legislation.  Eev.  St.,  §  §  1977,  1978, 
1979,  5510.  The  Civil  Rights  Bill  here  referred  to  is  analogous 
in  its  character  to  what  a  law  would  have  been  under  the  original 
Constitution,  declaring  that  the  validity  of  contracts  should  not 
be  impaired,  and  that  if  any  person  bound  by  a  contract  should 
refuse  to  comply  with  it,  under  color  or  pretence  that  it  had  been 
rendered  void  or  invalid  by  a  State  law,  he  should  be  liable  to  an 
action  upon  it  in  the  courts  of  the  United  States,  with  the  addi- 
tion of  a  penalty  for  setting  up  such  an  unjust  and  unconstitutional 
defense. 

In  this  connection  it  is  proper  to  state  that  civil  rights,  such  as 
are  guaranteed  by  the  Constitution  against  State  aggression,  can- 
not be  impaired  by  the  wrongful  acts  of  individuals,  unsupported 
by  State  authority  in  the  shape  of  laws,  customs,  or  judicial  or 
executive  proceedings.  The  wrongful  act  of  an  individual,  un- 
supported by  any  such  authority,  is  simply  a  private  wrong,  or  a 
crime  of  that  individual;  an  invasion  of  the  rights  of  the  injured 
party,  it  is  true,  whether  they  affect  his  person,  his  property,  or  his 
reputation;  but  if  not  sanctioned  in  some  way  by  the  State,  or  not 
done  under  State  authority,  his  rights  remain  in  full  force,  and 
may  presumably  be  vindicated  by  resort  to  the  laws  of  the  State 
for  redress.  An  individual  cannot  deprive  a  man  of  his  right  to 
vote,  to  hold  property,  to  buy  and  sell,  to  sue  in  the  courts,  or  to  be 
a  witness  or  a  juror;  he  may,  by  force  or  fraud,  interfere  with  the 
enjo}Tnent  of  the  right  in  a  particular  case;  he  may  commit  an 
assault  against  the  person,  or  commit  murder,  or  use  ruffian  vio- 


CIVIL  RIGHTS  CASES.  527 

lence  at  the  polls,  or  slander  the  good  name  of  a  fellow-citizen; 
but,  unless  protected  in  these  wrongful  acts  by  some  shield  of  State 
law  or  State  authority,  he  cannot  destroy  or  injure  the  right;  he 
will  only  render  himself  amenable  to  satisfaction  or  punishment; 
and  amenable  therefor  to  the  laws  of  the  State  where  the  wrong- 
ful acts  are  committed.  Hence,  in  all  those  cases  where  the  Con- 
stitution seeks  to  protect  the  rights  of  the  citizen  against  dis- 
criminative and  unjust  laws  of  the  State  by  prohibiting  such  laws, 
it  is  not  individual  offenses,  but  abrogation  and  denial  of  rights, 
which  it  denounces,  and  for  which  it  clothes  the  Congress  with 
power  to  provide  a  remedy.  This  abrogation  and  denial  of  rights, 
for  which  the  States  alone  w^ere  or  could  be  responsible,  was  the 
great  seminal  and  fundamental  wrong  which  was  intended  to  be 
remedied.  And  the  remedy  to  be  provided  must  necessarily  be 
predicated  upon  that  wrong.  It  must  assume  that  in  the  cases 
provided  for,  the  evil  or  wrong  actually  committed  rests  upon  some 
State  law  or  State  authority  for  its  excuse  and  perpetration. 

Of  course,  these  remarks  do  not  apply  to  those  cases  in  which 
Congress  is  clothed  with  direct  and  plenary  powers  of  legislation 
over  the  whole  subject,  accompanied  with  an  express  or  implied 
denial  of  such  power  to  the  States,  as  in  the  regulation  of  com- 
merce with  foreign  nations,  among  the  several  States,  and  with 
the  Indian  tribes,  the  coining  of  money,  the  establishment  of  post- 
offices  and  post-roads,  the  declaring  of  war,  etc.  In  these  cases 
Congress  has  power  to  pass  laws  for  regulating  the  subjects  specified 
in  every  detail,  and  the  conduct  and  transactions  of  individuals  in 
respect  thereof.  But  where  a  subject  is  not  submitted  to  the  gen- 
eral legislative  power  of  Congress,  but  is  only  submitted  thereto 
for  the  purpose  of  rendering  effective  some  prohibition  against  par- 
ticular State  legislation  or  State  action  in  reference  to  that  subject, 
the  power  given  is  limited  by  its  object,  and  any  legislation  by 
Congress  in  the  matter  must  necessarily  be  corrective  in  its  char- 
acter, adapted  to  counteract  and  redress  the  operation  of  such  pro- 
hibited State  laws  or' proceedings  of  State  officers. 

If  the  principles  of  interpretation  which  we  have  laid  down  are 
correct,  as  we  deem  them  to  be  (and  they  are  in  accord  with  the 
principles  laid  down  in  the  cases  before  referred  to,  as  well  as  in 
the  recent  case  of  United  States  v.  Harris,  106  U.  S.,  629),  it  is 
clear  that  the  law  in  question  cannot  be  sustained  by  any  grant  of 
legislative  power  made  to  Congress  by  the  Fourteenth  Amendment. 
That  amendment  prohibits  the  States  from  denying  to  any  person 
the  equal  protection  of  the  laws,  and  declares  that  Congress  shall 
have  power  to  enforce,  by  appropriate  legislation,  the  provisions 


628  CASES    ON    CONSTITUTIONAL    LAW- 

of  the  amendment.  The  law  in  question,  without  any  reference 
to  adverse  State  legislation  on  the  subject,  declares  that  all  persons 
shall  be  entitled  to  equal  accommodations  and  privileges  of  inns, 
public  conveyances,  and  places  of  public  amusement,  and  imposes  a 
penalty  upon  any  individual  who  shall  deny  to  any  citizen  such 
equal  accommodations  and  privileges.  This  is  not  corrective  legis- 
tion;  it  is  primary  and  direct;  it  takes  immediate  and  absolute  pos- 
session of  the  subject  of  the  right  of  admission  to  inns,  public  con- 
veyances, and  places  of  amusement.  It  supersedes  and  displaces 
State  legislation  on  the  same  subject,  or  only  allows  it  permissive 
force.  It  ignores  such  legislation,  and  assumes  that  the  matter  is 
one  that  belongs  to  the  domain  of  national  regulation.  Whether 
it  would  not  have  been  a  more  effective  protection  of  the  rights  of 
citizens  to  have  clothed  Congress  with  plenary  power  over  the 
whole  subject,  is  not  now  the  question.  What  we  have  to  decide 
is,  whether  such  plenary  power  has  been  conferred  upon  Congress 
by  the  Fourteenth  Amendment;  and,  in  our  judgment,  it  has  not. 

We  have  discussed  the  question  presented  by  the  law  on  the 
assumption  that  a  right  to  enjoy  equal  accommodation  and  privi- 
leges in  all  inns,  public  conveyances,  and  places  of  public  amuse- 
ment, is  one  of  the  essential  rights  of  the  citizen  which  no  State 
can  abridge  or  interfere  with.  Whether  it  is  such  a  right,  or  not, 
is  a  different  question  which,  in  the  view  we  have  taken  of  the 
validity  of  the  law  on  the  ground  already  stated,  it  is  not  necessary 
to  examine. 

We  have  also  discussed  the  validity  of  the  law  in  reference  to 
cases  arising  in  the  States  only;  and  not  in  reference  to  cases 
arising  in  the  Territories  or  the  District  of  Columbia,  which  are 
subject  to  the  plenary  legislation  of  Congress  in  every  branch  of 
municipal  regulation.  Whether  the  law  would  be  a  valid  one  as 
applied  to  the  Territories  and  the  District  is  not  a  question  for 
consideration  in  the  cases  before  us:  they  all  being  cases  arising 
within  the  limits  of  States.  And  whether  Congress,  in  the  exer- 
cise of  its  power  to  regulate  commerce  amongst  the  several  States, 
might  or  might  not  pass  a  law  regulating  rights  in  public  convey- 
ances passing  from  one  State  to  another,  is  also  a  question  which  is 
not  now  before  us,  as  the  sections  in  question  are  not  conceived  in 
any  such  view. 

But  the  power  of  Congress  to  adopt  direct  and  primary,  as  dis- 
tinguished from  corrective  legislation,  on  the  subject  in  hand,  is 
sought,  in  the  second  place,  from  the  Thirteenth  Amendment, 
which  abolishes  slavery.  This  amendment  declares  "that  neither 
slavery,  nor  involuntary  servitude,  except  as  a  punishment  for 


CIVIL  RIGHTS  CASES.  529 

crime,  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  their  jurisdiction;" 
and  it  gives  Congress  power  to  enforce  the  amendment  by  appro- 
priate legislation. 

This  amendment,  as  well  as  the  Fourteenth,  is  undoubtedly 
self-executing  without  any  ancillary  legislation,  so  far  as  its  terms 
are  applicable  to  any  existing  state  of  circumstances.  By  its  own 
unaided  force  and  effect  it  abolished  slavery,  and  established  uni- 
versal freedom.  Still,  legislation  may  be  necessary  and  proper  to 
meet  all  the  various  cases  and  circumstances  to  be  affected  by  it, 
and  to  prescribe  proper  modes  of  redress  for  its  violation  in  letter 
or  spirit.  And  such  legislation  may  be  primary  and  direct  in  its 
character;  for  the  amendment  is  not  a  mere  prohibition  of  State 
laws  establishing  or  upholding  slavery,  but  an  absolute  declaration 
that  slavery  or  involuntary  servitude  shall  not  exist  in  any  part  of 
the  United  States. 

It  is  true  that  slavery  cannot  exist  without  law,  any  more  than 
property  in  lands  and  goods  can  exist  without  law:  and,  therefore, 
the  Thirteenth  Amendment  may  be  regarded  as  nullifying  all  State 
laws  which  establish  or  uphold  slavery.  But  it  has  a  reflex  char- 
acter also,  establishing  and  decreeing  universal  civil  and  political 
freedom  throughout  the  United  States;  and  it  is  assumed,  that  the 
power  vested  in  Congress  to  enforce  the  article  by  appropriate  leg- 
islation, clothes  Congress  with  power  to  pass  all  laws  necessary 
and  proper  for  abolishing  all  badges  and  incidents  of  slavery  in  the 
United  States:  and  upon  this  assumption  it  is  claimed,  that  this 
is  sufficient  authority, for  declaring  by  law  that  all  persons  shall 
have  equal  accommodations  and  privileges  in  all  inns,  public  con- 
veyances, £ind  places  of  amusement;  the  argument  being,  that  the 
denial  of  such  equal  accommodations  and  privileges  is,  in  itself,  a 
subjection  to  a  species  of  servitude  within  the  meaning  of  the 
amendment.  Conceding  the  major  proposition  to  be  true,  that 
Congress  has  a  right  to  enact  all  necessary  and  proper  laws  for  the 
obliteration  and  prevention  of  slavery  with  all  its  badges  and  inci- 
dents, is  the  minor  proposition  also  true,  that  the  denial  to  any 
person  of  admission  to  the  accommodations  and  privileges  of  an 
inn,  a  public  conveyance,  or  a  theatre,  does  subject  that  person  to 
any  form  of  servitude,  or  tend  to  fasten  upon  him  any  badge  of 
slavery?  If  it  does  not,  then  power  to  pass  the  law  is  not  found  in 
the  Thirteenth  Amendment. 

In  a  very  able  and  learned  presentation  of  the  cognate  question 
as  to  the  extent  of  the  rights,  privileges  and  immunities  of  citizens 
which  cannot  rightfully  be  abridged  by  State  laws  under  the  Four- 
34 


530  CASES    ON    CONSTITUTIONAL    LAW. 

teenth  Amendment,  made  in  a  former  case,  a  long  list  of  burdens 
and  disabilities  of  a  servile  character,  incidental  to  feudal  vassalage 
in  France,  and  which  were  abolished  by  the  decrees  of  the  National 
Assembly,  was  presented  for  the  purpose  of  showing  that  all  ine- 
qualities and  observances  exacted  by  one  man  from  another  were 
servitudes,  or  badges  of  slavery,  which  a  great  nation,  in  its  effort 
to  establish  universal  liberty,  made  haste  to  wipe  out  and  destroy. 
But  these  were  servitudes  imposed  by  the  old  law,  or  by  long  cus- 
tom, which  had  the  force  of  law,  and  exacted  by  one  man  from 
another  without  the  latter's  consent.  Should  any  such  servitudes 
be  imposed  by  a  State  law,  there  can  be  no  doubt  that  the  law 
would  be  repugnant  to  the  Fourteenth,  no  less  than  to  the  Thir- 
teenth Amendment;  nor  any  greater  doubt  that  Congress  has  ade- 
quate power  to  forbid  any  such  servitude  from  being  exacted. 

But  is  there  any  similarity  between  such  servitudes  and  a  denial 
by  the  owner  of  an  inn,  a  public  conveyance,  or  a  theatre,  of  its 
accommodations  and  privileges  to  an  individual,  even  though  the 
denial  be  founded  on  the  race  or  color  of  that  individual?  Where 
does  any  slavery  or  servitude,  or  badge  of  either,  arise  from  such 
an  act  of  denial?  Whether  it  might  not  be  a  denial  of  a  right 
which,  if  sanctioned  by  the  State  law,  would  be  obnoxious  to  the 
prohibitions  of  the  Fourteenth  Amendment,  is  another  question. 
But  what  has  it  to  do  with  the  question  of  slavery? 

It  may  be  that  by  the  Black  Code  (as  it  was  called),  in  the  times 
when  slavery  prevailed,  the  proprietors  of  inns  and  public  convey- 
ances were  forbidden  to  receive  persons  of  the  African  race,  be- 
cause it  might  assist  slaves  to  escape  from  the  control  of  their  mas- 
ters. This  was  merely  a  means  of  preventing  such  escapes,  and 
was  no  part  of  the  servitude  itself.  A  law  of  that  kind  could  not 
have  any  such  object  now,  however  Justly  it  might  be  deemed  an 
invasion  of  the  party's  legal  right  as  a  citizen,  and  amenable  to  the 
prohibitions  of  the  Fourteenth  Amendment. 

The  long  existence  of  African  slavery  in  this  country  gave  us 
very  distinct  notions  of  what  it  was,  and  what  were  its  necessary 
incidents.  Compulsory  service  of  the  slave  for  the  benefit  of  the 
master,  restraint  of  his  movements  except  by  the  master's  will,  dis- 
ability to  hold  property,  to  make  contracts,  to  have  a  standing  in 
court,  to  be  a  witness  against  a  white  person,  and  such  like  burdens 
and  incapacities,  were  the  inseparable  incidents  of  the  institution. 
Severer  punishments  for  crimes  were  imposed  on  the  slave  than  on 
free  persons  guilty  of  the  same  offenses.  Congress,  as  we  have 
seen,  by  the  Civil  Rights  Bill  of  1866,  passed  in  view  of  the  Thir- 
teenth Amendment,  before  the  Fourteenth  was  adopted,  under- 


CIVIL  RIGHTS  CASES.  531 

took  to  wipe  out  these  burdens  and  disabilities,  the  necessary  inci- 
dents of  slavery,  constituting  its  substance  and  visible  form;  and 
to  secure  to  all  citizens  of  every  race  and  color,  and  without  regard 
to  previous  servitude,  those  fundamental  rights  which  are  the 
essence  of  civil  freedom,  namely,  the  same  right  to  make  and  en- 
force contracts,  to  sue,  be  parties,  give  evidence,  and  to  inherit, 
purchase,  lease,  sell  and  convey  property,  as  is  enjoyed  by  white 
citizens.  Whether  this  legislation  was  fully  authorized  by  the 
Thirteenth  Amendment  alone,  without  the  support  which  it  after- 
ward received  from  the  Fourteenth  Amendment,  after  the  adoption 
of  which  it  was  re-enaoted  with  some  additions,  it  is  not  necessary 
to  inquire.  It  is  referred  to  for  the  purpose  of  showing  that  at 
that  time  (in  1866)  Congress  did  not  assume,  under  the  authority 
given  by  the  Thirteenth  Amendment,  to  adjust  what  may  be  called 
the  social  rights  of  men  and  races  in  the  community;  but  only  to 
declare  and  vindicate  those  fundamental  rights  which  appertain 
to  the  essence  of  citizenship,  and  the  enjoyment  or  deprivation  of 
which  constitutes  the  essential  distinction  between  freedom  and 
slavery. 

We  must  not  forget  that  the  province  and  scope  of  the  Thir- 
teenth and  Fourteenth  Amendments  are  different;  the  former 
simply  abolished  slavery:  the  latter  prohibited  the  States  from 
abridging  the  privileges  or  immunities  of  citizens  of  the  United 
States;  from  depriving  them  of  life,  liberty,  or  property  without 
due  process  of  law,  and  from  denying  to  any  the  equal  protection 
of  the  laws.  The  amendments  are  different,  and  the  powers  of 
Congress  under  them  are  different.  What  Congress  has  power  to 
do  under  one,  it  may  not  have  power  to  do  under  the  other.  Under 
the  Thirteenth  Amendment,  it  has  only  to  do  with  slavery  and  its 
incidents.  Under  the  Fourteenth  Amendment,  it  has  power  to 
counteract  and  render  nugatory  all  State  laws  and  proceedings 
which  have  the  effect  to  abridge  any  of  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States,  or  to  deprive  them  of  life, 
liberty  or  property  without  due  process  of  law,  or  to  deny  to  any 
of  them  the  equal  protection  of  the  laws.  Under  the  Thirteenth 
Amendment,  the  legislation,  so  far  as  necessary  or  proper  to  erad- 
icate all  forms  and  incidents  of  slavery  and  involuntary  servitude, 
may  be  direct  and  primary,  operating  upon  the  acts  of  individuals, 
whether  sanctioned  by  State  legislation  or  not;  under  the  Four- 
teenth, as  we  have  already  shown,  it  must  necessarily  be,  and  can 
only  be,  corrective  in  its  character,  addressed  to  counteract  and 
afford  relief  against  State  regulations  or  proceedings. 

The  only  question  under  the  present  head,  therefore,  is,  whether 


532  CASES    ON    CONSTITUTIONAL    LAW. 

the  refusal  to  any  persons  of  the  accommodations  of  an  inn,  or  a 
public  conveyance,  or  a  place  of  public  amusement,  by  an  individ- 
ual, and  without  any  sanction  or  support  from  any  State  law  or 
regulation,  does  inflict  upon  such  persons  any  manner  of  servitude, 
or  form  of  slavery,  as  those -terms  are  understood  in  this  country? 
Many  wrongs  may  be  obnoxious  to  the  prohibitions  of  the  Four- 
teenth Amendment  which  are  not,  in  any  just  sense,  incidents  or 
elements  of  slavery.  Such,  for  example,  would  be  the  taking  of 
l)rivate  property  without  due  process  of  law;  or  allowing  persons 
who  have  committed  certain  crimes  (horse-stealing,  for  example) 
to  be  seized  and  hung  by  the  posse  comitatus  without  regular  trial; 
or  denying  to  any  person,  or  class  of  persons,  the  right  to  pursue 
any  peaceful  avocations  allowed  to  others.  What  is  called  class 
legislation  would  belong  to  this  category,  and  would  be  obnoxious 
to  the  prohibitions  of  the  Fourteenth  Amendment,  but  would  not 
necessarily  be  so  to  the  Thirteenth,  when  not  involving  the  idea 
of  any  subjection  of  one  man  to  another.  The  Thirteenth  Amend- 
ment has  respect,  not  to  distinctions  of  race,  or  class,  or  color,  but 
to  slavery.  The  Fourteenth  Amendment  extends  its  protection  to 
races  and  classes,  and  prohibits  any  State  legislation  which  has 
the  effect  of  denying  to  any  race  or  class,  or  to  any  individual,  the 
equal  protection  of  the  laws. 

Now,  conceding,  for  the  sake  of  the  argument,  that  the  admis- 
sion to  an  inn,  a  public  conveyance,  or  a  place  of  public  amuse- 
ment, on  equal  terms  with  all  other  citizens,  is  the  right  of  every 
man  and  all  classes  of  men,  is  it  any  more  than  one  of  those  rights 
which  the  States  by  the  Fourteenth  Amendment  are  forbidden  to 
deny  to  any  person?  And  is  the  Constitution  violated  until  the 
denial  of  the  right  has  some  State  sanction  or  authority?  Can  the 
act  of  a  mere  individual,  the  owner  of  the  inn,  the  public  convey- 
ance or  place  of  amusement,  refusing  the  accommodation,  be  justly 
regarded  as  imposing  any  badge  of  slavery  or  servitude  upon  the 
applicant,  or  only  as  inflicting  an  ordinary  civil  injury,  properly 
cognizable  by  the  laws  of  the  State,  and  presumably  subject  to 
redress  by  those  laws  until  the  contrary  appears? 

After  giving  to  these  questions  all  the  consideration  which 
their  importance  demands,  we  are  forced  to  the  conclusion  that 
such  an  act  of  refusal  has  nothing  to  do  with  slavery  or  involun- 
tary servitude,  and  that  if  it  is  violative  of  any  right  of  the  party, 
his  redress  is  to  be  sought  under  the  laws  of  the  State;  or  if  those 
laws  are  adverse  to  his  rights  and  do  not  protect  him,  his  remedy 
will  be  found  in  the  corrective  legislation  which  Congress  has 
adopted,  or  may  adopt,  for  counteracting  the  effect  of  State  laws,  or 


CIVIL  RIGHTS  CASES.  533 

State  action,  prohibited  by  the  Fourteenth  Amendment.  It  would 
be  running  the  slavery  argument  into  the  ground  to  make  it  apply 
to  every  aot  of  discrimination  which  a  person  may  see  fit  to  make 
as  to  the  guests  he  will  entertain,  or  as  to  the  people  he  will  take 
into  his  coach  or  cab  or  car,  or  admit  to  his  concert  or  theatre,  or 
deal  with  in  other  matters  of  intercourse  or  business.  Innkeepers 
and  public  carriers,  by  the  laws  of  all  the  States,  so  far  as  we  are 
aware,  are  bound,  to  the  extent  of  their  facilities,  to  furnish  proper 
accommodations  to  all  unobjectionable  persons  who  in  good  faith 
apply  for  them.  If  the  laws  themselves  make  any  unjust  discrim- 
ination, amenable  to  the  prohibitions  of  the  Fourteenth  Amend- 
ment, Congress  has  full  power  to  accord  a  remedy  under  that 
amendment  and  in  accordance  with  it. 

When  a  man  has  emerged  from  slavery,  and  by  the  aid  of  benefi- 
cent legislation  has  shaken  off  the  inseparable  concomitants  of  that 
state,  there  must  be  some  stage  in  the  progress  of  his  elevation  when 
he  takes  the  rank  of  a  mere  citizen,  and  ceases  to  be  the  special 
favorite  of  the  laws,  and  when  his  rights  as  a  citizen,  or  a  man,  are 
to  be  protected  in  the  ordinary  modes  by  which  other  men's  rights 
are  protected.  •  There  were  thousands  of  free  colored  people  in  this 
country  before  the  abolition  of  slavery,  enjoying  all  the  essential 
rights  of  life,  liberty  and  property  the  same  as  white  citizens;  yet 
no  one,  at  that  time,  thought  that  it  was  any  invasion  of  his  per- 
sonal status  as  a  freeman  because  he  was  not  admitted  to  all  the 
privileges  enjoyed  by  white  citizens,  or  because  he  was  subjected  to 
discriminations  in  the  enjoyment  of  accommodations  in  inns,  pub- 
lic conveyances  and  places  of  amusement.  Mere  discriminations 
on  account  of  race  or  color  were  not  regarded  as  badges  of  slavery. 
If,  since  that  time,  the  enjoyment  of  equal  rights  in  all  these  re- 
spects has  become  established  by  constitutional  enactment,  it  is 
not  by  force  of  the  Thirteenth  Amendment  (which  merely  abolishes 
slavery),  but  by  force  of  the  Thirteenth  [Fourteenth?]  and  Fif- 
teenth Amendments. 

On  the  whole,  we  are  of  opinion,  that  no  countenance  of  au- 
thority for  the  passage  of  the  law  in  question  can  be  found  in  either 
the  Thirteenth  or  Fourteenth  Amendments  of  the  Constitution; 
and  no  other  grourd  of  authority  for  its  passage  being  suggested, 
it  must  necessarily  be  declared  void,  at  least  so  far  as  its  operation 
in  the  several  States  is  concerned. 

This  conclusion  disposes  of  the  cases  now  under  consideration. 
In  the  cases  of  the  United  States  v.  Michael  Ryan,  and  of  Richard 
A.  Robinson  and  Wife  v.  The  Memphis  &  Charleston  Railroad 
Company,  the  judgments  must  be  affirmed.     In  the  other  cases. 


534  CASES    ON    CONSTITUTIONAL    LAW. 

the  answer  to  be  given  will  be  that  the  first  and  second  sections 
of  the  act  of  Congress  of  March  1st,  1875,  entitled  "An  Act  to 
protect  all  citizens  in  their  civil  and  legal  rights,"  are  unconstitu- 
tional and  void,  and  that  judgment  should  be  rendered  upon  the 
several  indictments  in  those  cases  accordingly. 

And  it  is  so  ordered. 
[Mr.  Justice  Harlan  delivered  a  dissenting  opinion.] 


HURTADO    V.    CALIFORNIA, 
no  U.  S.,  516.   Decided  1884. 

The  Constitution  of  the  State  of  California,  adopted  in  1879, 
in  Article  I,  section  8,  provides  as  follows: 

"Offences  heretofore  required  to  be  prosecuted  by  indictment 
shall  be  prosecuted  by  information,  after  examination  and  com- 
mitment by  a  magistrate,  or  by  indictment  without  such  examina- 
tion and  commitment  as  may  be  prescribed  by  law.  A  grand  jury 
shall  be  summoned  at  least  once  a  year  in  each  county."     .     .     . 

[Hurtado,  having  been  charged  with  murder  by  an  information 
filed  with  the  District  Attorney,  was  tried  by  jury,  convicted,  and 
sentenced  to  be  hanged.  Thereupon  he  filed  certain  objections  to 
the  execution  of  the  sentence,  one  of  which  recited  "that  the  said 
plaintiff  in  error  had  been  held  to  answer  for  the  said  crime  of 
murder  by  the  district  attorney  of  the  said  county  of  Sacramento, 
upon  an  information  filed  by  him,  and  had  been  tried  and  illegally 
found  guilty  of  said  crime,  without  any  presentment  or  indictment 
of  any  grand  or  other  jury,  and  that  the  judgment  rendered  upon 
the  alleged  verdict  of  the  jury  in  such  case  was  and  is  void,  and  if 
executed  would  deprive  the  plaintiff  in  error  of  his  life  or  liberty 
without  due  process  of  law."] 

Mr.  Justice  Matthews  delivered  the  opinion  of  the  court. 
After  reciting  the  facts  in  the  foregoing  language,  he  continued: 

It  is  claimed  on  behalf  of  the  prisoner  that  the  conviction  and 
sentence  are  void,  on  the  ground  that  they  are  repugnant  to  that 
clause  of  the  Fourteenth  Article  of  Amendment  of  the  Constitution 
of  the  United  States  which  is  in  these  words: 

"Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law." 


HURTADO  V.  CALIFORNIA.  535 

The  proposition  of  law  we  are  asked  to  affirm  is  that  an  indict- 
ment or  presentment  by  a  grand  Jury  as  known  to  the  common  law 
of  England,  is  essential  to  that  "due  process  of  law,"  when  applied 
to  prosecutions  for  felonies,  which  is  secured  and  guaranteed  by 
this  provision  of  the  Constitution  of  the  United  States,  and  which 
accordingly  it  is  forbidden  to  the  States  respectively  to  dispense 
with  in  the  administration  of  criminal  law.  .  .  .  [Here  follow 
citations  from  Kalloch  v.  Superior  Court,  56  Cal.,  229,  and  Eowan 
V.  The  State,  30  Wis.,  129.] 

On  the  other  hand,  it  is  maintained  on  behalf  of  the  plaintiff  in 
error  that  the  phrase  "due  process  of  law"  is  equivalent  to  "law  of 
the  land/'  as  found  in  the  29th  chapter  of  Magna  Charta;  that  by 
immemorial  usage  it  has  acquired  a  fixed,  definite,  and  technical 
meaning;  that  it  refers  to  and  includes,  not  only  the  general  prin- 
ciples of  public  liberty  and  private  right,  which  lie  at  the  founda- 
tion of  all  free  government,  but  the  very  institutions  which,  ven- 
erable by  time  and  custom,  have  been  tried  by  experience  and  found 
fit  and  necessary  for  the  preservation  of  those  principles,  and  which, 
having  been  the  birthright  and  inheritance  of  every  English  sub- 
ject, crossed  the  Atlantic  with  the  colonists  and  were  transplanted 
and  established  in  the  fundamental  laws  of  the  State;  that,  having 
been  originally  introduced  into  the  Constitution  of  the  United 
States  as  a  limitation  upon  the  powers  of  the  government,  brought 
into  being  by  that  instrument,  it  has  now  been  added  as  an  addi- 
tional security  to  the  individual  against  oppression  by  the  States 
themselves;  that  one  of  these  institutions  is  that  of  the  grand  jury, 
an  indictment  or  presentment  by  which  against  the  accused  in 
cases  of  alleged  felonies  is  an  essential  part  of  due  process  of  law, 
in  order  that  he  may  not  be  harassed  or  destroyed  by  prosecutions 
founded  only  upon  private  malice  or  popular  fury. 

This  view  is  certainly  supported  by  the  authority  of  the  great 
name  of  Chief  Justice  Shaw  and  of  the  court  in  which  he  pre- 
sided, which,  in  Jones  v.  Robbins,  8  Gray,  329,  decided  that  the 
12th  article  of  the  Bill  of  Rights  of  Massachusetts,  a  transcript 
of  Magna  Charta  in  this  respect,  made  an  indictment  or  present- 
ment of  a  grand  jury  essential  to  the  validity  of  a  conviction 
in  cases  of  prosecutions  for  felonies.  In  delivering  the  opinion 
of  the  court  in  that  case,  Merrick,  J.,  alone  dissenting,  the  Chief 
Justice  said: 

"The  right  of  individual  citizens  to  be  secure  from  an  open  and 
public  accusation  of  crime,  and  from  the  trouble,  expense,  and 
anxiety  of  a  public  trial  before  a  probable  cause  is  established  by 
the  presentment  and  indictment  of  a  grand  jury,  in  case  of  high 


536  CASES    ON    CONSTITUTIONAL    LAW. 

offenses,  is  justly  regarded  as  one  of  the  securities  to  the  inno- 
cent against  hasty,  malicious,  and  oppressive  public  prosecutions, 
and  as  one  of  the  ancient  immunities  and  privileges  of  English 
liberty."  .  .  .  "It  having  been  stated,"  he  continued,  '"by 
Lord  Coke,  that  by  the  'law  of  the  land'  was  intended  a  due  course 
of  proceeding  according  to  the  established  rules  and  practice  of 
the  courts  of  common  law,  it  may,  perhaps,  be  suggested  that  this 
might  include  other  modes  of  proceeding  sanctioned  by  the  com- 
mon law,  the  most  familiar  of  which  are,  by  informations  of  dif- 
ferent kinds,  by  the  officers  of  the  crown  in  the  name  of  the 
King.  But,  in  reply  to  this,  it  may  be  said  that  Lord  Coke  himself 
explains  his  own  meaning  by  saying  'the  law  of  the  land,'  as  ex- 
pressed in  Magna  Charta,  was  intended  due  process  of  law,  that  is, 
by  indictment  or  presentment  of  good  and  lawful  men.  And  fur- 
ther, it  is  stated  on  the  authority  of  Blackstone,  that  informations 
of  every  kind  are  confined  by  the  constitutional  law  to  misde- 
meanors only.    4  Bl.  Com.,  310."    .    .    . 

This  view  of  the  meaning  of  Lord  Coke  is  the  one  taken  by 
Merrick,  J.,  in  his  dissenting  opinion  in  Jones  v.  Robbins,  8  Gray, 
329,  who  states  his  conclusions  in  these  words: 

"It  is  the  forensic  trial,  under  a  broad  and  general  law,  operat- 
ing equally  upon  every  member  of  our  community,  which  the  words 
'by  the  law  of  the  land,'  in  Magna  Charta,  and  in  every  subsequent 
declaration  of  rights  which  has  borrowed  its  phraseology,  make 
essential  to  the  safety  of  the  citizen,  securing  thereby  both  his 
liberty  and  his  property,  by  preventing  the  unlawful  arrest  of 
his  person  or  any  unlawful  interference  with  his  estate."  See 
also  State  v.  Starling,  15  Eich.  (S.  C.)  Law,  120. 

Mr.  Reeve,  in  2  History  of  Eng.  Law,  43,  translates  the  phrase, 
nisi'per  legale  judicium  parium  suorum  velper  legem  terrce. 

"But  by  the  judgment  of  his  peers,  or  by  some  other  legal  process 
or  proceeding  adapted  by  the  law  to  the  nature  of  the  case." 

Chancelor  Kent,  2  Com.,  13,  adopts  this  mode  of  construing 
the  phrase.  Quoting  the  language  of  Magna  Charta,  and  refer- 
ring to  Lord  Coke's  comment  upon  it,  he  says: 

"The  better  and  larger  definition  of  due  process  of  law  is  that 
it  means  law  in  its  regular  course  of  administration  through  courts 
of  justice." 

This  accords  with  what  is  said  in  "Westervelt  v.  Gregg,  12  N.  Y., 
202,  by  Denio,  J.,  p.  212: 

"The  provision  was  designed  to  protect  the  citizen  against  all 
mere  acts  of  power,  whether  flowing  from  the  legislative  or  ex- 
ecutive branches  of  the  government." 


HURTADO  V.  CALIFORNIA.  537 

The  principal  and  true  meaning  of  the  phrase  has  never  been 
more  tersely  or  accurately  stated  than  by  Mr.  Justice  Johnson, 
in  Bank  of  Columbia  v.  Okely,  4  Wheat.,  235-244: 

"As  to  the  words  from  Magna  Charta,  incorporated  into  the  Con-* 
stitution  of  Maryland,  after  volumes  spoken  and  written  with  a 
view  to  their  exposition,  the  good  sense  of  mankind  has  at  last 
settled  down  to  this:  that  they  were  intended  to  secure  the  indi- 
vidual from  the  arbitrary  exercise  of  the  powers  of  government, 
unrestrained  by  the  established  principles  of  private  right  and 
distributive  justice." 

And  the  conclusion  rightly  deduced  is,  as  stated  by  Mr.  Cooley, 
Constitutional  Limitations,  356: 

"The  principles,  then,  upon  which  the  process  is  based,  are  to 
determine  whether  it  is  'due  process'  or  not,  and  not  any  con- 
siderations of  mere  form.  Administrative  and  remedial  process 
may  be  changed  from  time  to  time,  but  only  with  due  regard  to 
the  landmarks  established  for  the  protection  of  the  citizen." 

It  is  urged  upon  us,  however,  in  argument,  that  the  claim  made 
in  behalf  of  the  plaintiff  in  error  is  supported  by  the  decision  of 
this  court  in  Murray's  Lessee  v.  Hoboken  Land  &  Improvement 
Company,  18  How.,  272.  There  Mr.  Justice  Curtis,  delivering 
the  opinion  of  the  court,  after  showing,  p.  276,  that  due  process 
of  law  must  mean  something  more  than  the  actual  existing  law 
of  the  land,  for  otherwise  it  would  be  no  restraint  upon  legisla- 
tive power,  proceeds  as  follows: 

"To  what  principle,  then,  are  we  to  resort  to  ascertain  whether 
this  process,  enacted  by  Congress,  is  due  process?  To  this  the 
answer  must  be  twofold.  We  must  examine  the  Constitution  itself 
to  see  whether  this  process  be  in  conflict  with  any  of  its  provisions. 
If  not  found  to  be  so,  we  must  look  to  those  settled  usages  and 
modes  of  proceeding  existing  in  the  common  and  statute  law  of 
England  before  the  emigration  of  our  ancestors,  and  which  are 
shown  not  to  have  been  unsuited  to  their  civil  and  political  con- 
dition by  having  been  acted  on  by  them  after  the  settlement  of 
this  country." 

This,  it  is  argued,  furnishes  an  indispensable  test  of  what  consti- 
tutes "due  process  of  law;"  that  any  proceeding  otherwise  author- 
ized by  law,  which  is  not  thus  sanctioned  by  usage,  or  which  super- 
sedes and  displaces  one  that  is,  cannot  be  regarded  as  due  process 
of  law. 

But  this  inference  is  unwarranted.  The  real  syllabus  of  the  pas- 
sage quoted  is,  that  a  process  of  law,  which  is  not  otherwise  for- 
bidden, must  be  taken  to  be  due  process  of  law,  if  it  can  show  the 


538  CASES    ON    CONSTITUTIONAL    LAW. 

sanction  of  settled  usage  both  in  England  and  in  this  country;  but 
it  by  no  means  follows  that  nothing  else  can  be  due  process  of 
law.  The  point  in  the  case  cited  arose  in  reference  to  a  summary 
proceeding,  questioned  on  that  account,  as  not  due  process  of  law. 
The  answer  was:  however  exceptional  it  may  be,  as  tested  by 
definitions  and  principles  of  ordinary  procedure,  nevertheless,  this, 
in  substance,  has  been  immemorially  the  actual  law  of  the  land, 
and,  therefore,  is  due  process  of  law.  But  to  hold  that  such  a 
characteristic  is  essential  to  due  process  of  law,  would  be  to  deny 
every  quality  of  the  law  but  its  age,  and  to  render  i:  incapable 
of  progress  or  improvement.  It  would  be  to  stamp  upon  our  juris- 
prudence the  unchangeableness  attributed  to  the  laws  of  the  Medes 
and  Persians. 

This  would  be  all  the  more  singular  and  surprising,  in  this  quick 
and  active  age,  when  we  consider  that,  owing  to  the  progressive 
development  of  legal  ideas  and  institutions  in  England,  the  words 
of  Magna  Charta  stood  for  very  different  things  at  the  time  of  the 
separation  of  the  American  colonies  from  what  they  represented 
originally.     .     .     . 

This  flexibility  and  capacity  for  growth  and  adaptation  is  the 
peculiar  boast  and  excellence  of  the  common  law.  Sir  James 
Mackintosh  ascribes  this  principle  of  development  to  Magna 
Charta  itself.    To  use  his  own  language: 

"It  was  a  peculiar  advantage  that  the  consequences  of  its  prin- 
ciples were,  if  we  may  so  speak,  only  discovered  slowly  and  grad- 
ually. It  gave  out  on  each  occasion  only  so  much  of  the  spirit 
of  liberty  and  reformation  as  the  circumstances  of  succeeding  gen- 
erations required  and  as  their  character  would  safely  bear.  For 
almost  five  centuries  it  was  appealed  to  as  the  decisive  authority 
on  behalf  of  the  people,  though  commonly  so  far  only  as  the  neces- 
sities of  each  case  demanded."     1  Hist,  of  England,  221. 

The  Constitution  of  the  United  States  was  ordained,  it  is  true, 
by  descendants  of  Englishmen,  who  inherited  the  traditions  of 
English  law  and  history;  but  it  was  made  for  an  undefined  and 
expanding  future,  and  for  a  people  gathered  and  to  be  gathered 
from  many  nations  and  of  many  tongues.  And  while  we  take  just 
pride  in  the  principles  and  institutions  of  the  common  law,  we  are 
not  to  forget  that  in  lands  where  other  systems  of  jurisprudence 
prevail,  the  ideas  and  processes  of  civil  justice  are  also  not  un- 
known. Due  process  of  law,  in  spite  of  the  absolutism  of  con- 
tinental governments,  is  not  alien  to  that  code  which  survived  the 
Roman  Empire  as  the  foundation  of  modem  civilization  in  Europe, 
and  which  has  given  us  that  fundamental  maxim  of  distributive 


HURTADO  V.  CALIFORNIA.  539 

justice, — suum  cuique  tribuere.  There  is  nothing  in  Magna  Charta, 
rightly  construed  as  a  broad  charter  of  public  right  and  law,  which 
x)ught  to  exclude  the  best  ideas  of  all  systems  and  of  every  age; 
and  as  it  was  the  characteristic  principle  of  the  common  law  to 
draw  its  inspiration  from  every  fountain  of  justice,  we  are  not 
to  assume  that  the  sources  of  its  supply  have  been  exhausted.  On 
the  contrary,  we  should  expect  that  the  new  and  various  experi- 
ences of  our  own  situation  and  system  will  mould  and  shape  it  into 
new  and  not  less  useful?  forms. 

The  concessions  of  Magna  Charta  were  wrung  from  the  King 
as  guaranties  against  the  oppressions  and  usurpations  of  his  pre- 
rogative. It  did  not  enter  into  the  minds  of  the  barons  to  provide 
security  against  their  own  body  or  in  favor  of  the  Commons  by 
limiting  the  power  of  Parliament]  so  that  bills  of  attainder,  ex 
post  facto  laws,  laws  declaring'  forfeitures  of  estates,  and  other 
arbitrary  acts  of  legislation  which  occur  so  frequently  in  English 
history,  were  never  regarded  as  inconsistent  with  the  law  of  the 
land;  for  notwithstanding  what  was  attributed  to  Lord  Coke  in 
Bonham's  Case,  8  Eep.,  115,  118a,  the  omnipotence  of  Parlia- 
ment over  the  common  law  was  absolute,  even  against  common 
right  and  reason.  The  actual  and  practical  security  for  English 
liberty  against  legislative  tyranny  was  the  power  of  a  free  public 
opinion  represented  by  the  Commons. 

In  this  country  written  constitutions  were  deemed  essential  to 
protect  the  rights  and  liberties  of  the  people  against  the  encroach- 
ments of  power  delegated  to  their  governments,  and  the  provisions 
of  Magna  Charta  were  incorporated  into  Bills  of  Rights.  They 
were  limitations  upon  all  the  powers  of  government,*  legislative  as 
well  as  executive  and  judicial. 

It  necessarily  happened,  therefore,  that  as  these  broad  and 
general  maxims  of  liberty  and  justice  held  in  our  system  a  different 
place  and  performed  a  different  function  from  their  position  and 
office  in  English  constitutional  history  and  law,  they  would  receive 
and  justify  a  corresponding  and  more  comprehensive  interpreta- 
tion. Applied  in  England  only  as  guards  against  executive  usurpa- 
tion and  tyranny,  here  they  have  become  bulwarks  also  against  ar- 
bitrary legislation;  but,  in  that  application,  as  it  would  be  incon- 
gruous to  measure  and  restrict  them  by  the  ancient  customary  Eng- 
lish law,  they  must  be  held  to  guarantee,  not  particular  forms  of 
procedure,  but  the  very  substance  of  individual  rights  to  life,  lib- 
erty, and  property. 

Restraints  that  could  be  fastened  upon  executive  authority  with 
precision  and  detail,  might  prove  obstructive  and  injurious  when 


540  CASES    ON    CONSTITUTIONAL    LAW. 

imposed  on  the  just  and  necessary  discretion  of  legislative  power; 
and,  while  in  every  instance,  laws  that  violated  express  and  specific 
injunctions  and  prohibitions  might,  without  embarrassment,  be- 
judicially  declared  to  be  void,  yet,  any  general  principle  or  maxim, 
founded  on  the  essential  nature  of  law,  as  a  just  and  reasonable 
expression  of  the  public  will  and  of  government,  as  instituted  by 
popular  consent  and  for  the  general  good,  can  only  be  applied  to 
cases  coming  clearly  within  the  scope  of  its  spirit  and  purpose,  and 
not  to  legislative  provisions  merely  establishing  forms  and  modes 
of  attainment.  Such  regulations,  to  adopt  a  sentence  of  Burke's, 
"may  alter  the  mode  and  application,  but  have  no  power  over  the 
substance  of  original  justice."  Tract  on  the  Popery  Laws,  6 
Burke's  Works,  ed.  Little  &  Brown,  323. 

Such  is  the  often-repeated  doctrine  of  this  court.  .  .  . 
[Here  are  given  quotations  from  Munn  v.  111.,  94  U.  S.,  113; 
Walker  v.  Savinet,  92  U.  S.,  90;  Kennard  v.  Louisiana,  92  U.  S., 
480;  Davidson  v.  N.  0.,  96  U.  S.,  97.] 

We  are  to  construe  this  phrase  in  the  Fourteenth  Amendment 
by  the  tisus  loqueiidi  of  the  Constitution  itself.  The  same  words 
are  contained  in  the  Fifth  Amendment.  That  article  makes  spe- 
cific and  express  provision  for  perpetuating  the  institution  of  the 
grand  jury,  so  far  as  relates  to  prosecutions  for  the  more  aggra- 
vated crimes  under  the  laws  of  the  United  States.  It  declares 
that: 

"No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia  when  in  actual  service  in  time  of  war  or  public  danger;  nor 
shall  any  person  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  he  be  compelled  in  any  crim- 
inal case  to  be  witness  against  himself."  [It  then  immediately 
adds:]  "Nor  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law." 

According  to  a  recognized  canon  of  interpretation,  especially  ap- 
plicable to  formal  and  solemn  instruments  of  constitutional  law, 
we  are  forbidden  to  assume,  without  clear  reason  to  the  contrary, 
that  any  part  of  this  most  important  amendment  is  superfluous. 
The  natural  and  obvious  inference  is,  that  in  the  sense  of  the  Con- 
stitution, "due  process  of  law"  was  not  meant  or  intended  to  in- 
clude, ex  vi  termini,  the  institution  and  procedure  of  a  grand  jury 
in  any  case.  The  conclusion  is  equally  irresistible,  that  when  the 
same  phrase  was  employed  in  the  Fourteenth  Amendment  to  re- 
strain the  action  of  the  States,  it  was  used  in  the  same  sense  and 


HURTADO  V.  CALIFORNIA.  541 

with  no  greater  extent;  and  that  if  in  the  adoption  of  that  amend- 
ment it  had  been  part  of  its  purpose  to  perpetuate  the  institution  of 
the  grand  jury  in  all  the  States,  it  would  have  embodied,  as  did  the 
Fifth  Amendment,  express  declarations  to  that  etfect.  Due  process 
of  law  in  the  latter  refers  to  that  law  of  the  land  which  derives 
its  authority  from  the  legislative  powers  conferred  upon  Congress 
by  the  Constitution  of  the  United  States,  exercised  within  the 
limits  therein  prescribed,  and  interpreted  according  to  the  prin- 
ciples of  the  common  law.  In  the  Fourteenth  Amendment,  by 
parity  of  reason,  it  refers  to  that  law  of  the  land  in  each  State 
which  derives  its  authority  from  the  inherent  and  reserved  powers 
of  the  State,  exerted  within  the  limits  of  those  fundamental  prin- 
ciples of  liberty  and  justice  which  lie  at  the  base  ol  all  our  civil 
and  political  institutions^  and  tho  greatest  security  for  which  re- 
sides in  the  right  of  the  people  to  make  their  own  laws,  and  alter 
them  at  their  pleasure.  .  .  .  [Here  follows  a  citation  from 
Missouri  v.  Lewis,  101  U.  S.,  22-31.] 

But  it  is  not  to  be  supposed  that  these  legislative  powers  are 
absolute  and  despotic,  and  that  the  amendment  prescribing  due 
process  of  law  is  too  vague  and  indefinite  to  operate  as  a  practical 
restraint.  It  is  not  every  act,  legislative  in  form,  that  is  law.  Law 
is  something  more  than  mere  will  exerted  as  an  act  of  power.  It 
must  be  not  a  special  rule  for  a  particular  person  or  a  particular 
case,  but,  in  the  language  of  Mr.  Webster,  in  his  familiar  defini- 
tion, "the  general  law,  a  law  which  hears  before  it  condemns, 
which  proceeds  upon  inquiry,  and  renders  judgment  only  after 
trial,"  so  "that  every  citizen  shall  hold  his  life,  liberty,  property, 
and  immunities  under  the  protection  of  the  general  rules  which 
govern  society;"  and  thus  excluding,  as  not  due  process  of  law, 
acts  of  attainder,  bills  of  pains  and  penalties,  acts  of  confiscation, 
acts  reversing  judgments,  and  acts  directly  transferring  one  man's 
estate  to  another,  legislative  judgments  and  decrees,  and  other 
similar  special,  partial,  and  arbitrary  exertions  of  power  under 
the  forms  of  legislation.  Arbitrary  power,  enforcing  its  edicts  to 
the  injury  of  the  persons  and  property  of  its  objects,  is  not  law, 
whether  manifested  as  the  decree  of  a  personal  monarch  or  of 
an  impersonal  multitude.  And  the  limitations  imposed  by  our 
constitutional  law  upon  the  action  of  the  governments,  both  State 
and  national,  are  essential  to  the  preservation  of  public  and  pri- 
vate rights,  notwithstanding  the  representative  character  of  our 
political  institutions.  The  enforcement  of  these  limitations  by 
judicial  process  is  the  device  of  self-governing  communities  to  pro- 
tect the  rights  of  individuals  and  minorities,  as  well  against  the 


542  CASES    ON    CONSTITUTIONAL    LAW. 

power  of  numbers  as  against  the  violence  of  public  agents  tran- 
scending the  limits  of  lawful  authority,  even  when  acting  in  the 
name  and  wielding  the  force  of  the  government. 

The  Supreme  Court  of  Mississippi,  in  a  well-considered  case, — 
Brown  v.  Levee  Commissioners,  50  Miss.,  468, — speaking  of  the 
meaning  of  the  phrase  "due  process  of  law,"  says:  "The  principle 
does  not  demand  that  the  laws  existing  at  any  point  of  time  shall 
be  irrepcalable,  or  that  any  forms  of  remedies  shall  necessarily 
continue.  It  refers  to  certain  fundamental  rights  which  that  sys- 
tem of  jurisprudence,  of  which  ours  is  a  derivative,  has  always 
recognized.  If  any  of  these  are  disregarded  in  the  proceedings  by 
which  a  person  is  condemned  to  the  loss  of  life,  liberty,  or  property, 
then  the  deprivation  has  not  been  by  'due  process  of  law.' " 
.  .  .  [Here  follows  a  citation  from  Loan  Association  v.  To- 
peka,  20  Wallace,  655-662.] 

It  follows  that  any  legal  proceeding  enforced  by  public  author- 
ity, whether  sanctioned  by  age  and  custom,  or  newly  devised  in 
the  discretion  of  the  legislative  power,  in  furtherance  of  the  gen- 
eral public  good,  which  regards  and  preserves  these  principles  of 
liberty  and  justice,  must  be  held  to  be  due  process  of  law. 

The  Constitution  of  Connecticut,  adopted  in  1818  and  in  force 
when  the  Fourteenth  Amendment  took  effect,  requires  an  indict- 
ment or  presentment  of  a  grand  jury  only  in  cases  where  the  pun- 
ishment of  the  crime  charged  is  death  or  imprisonment  for  life, 
and  yet  it  also  declares  that  no  person  shall  "be  deprived  of  life, 
liberty,  or  property  but  by  due  course  of  law."  It  falls  short, 
therefore,  of  that  measure  of  protection  which  it  is  claimed  is 
guaranteed  by  Magna  Charta  to  the  right  of  personal  liberty; 
notwithstanding  which  it  is  no  doubt  justly  said  in  Swift's  Digest, 
17,  that 

"This  sacred  and  inestimable  right,  without  which  all  others 
are  of  little  value,  is  enjoyed  by  the  people  of  this  State  in  as  full 
extent  as  in  any  country  on  the  globe,  and  in  as  high  a  degree 
as  is  consistent  with  the  nature  of  civil  government.  No  individ- 
ual or  body  of  men  has  a  discretionary  or  arbitrary  power  to  com- 
mit any  person  to  prison:  no  maa  can  be  restrained  of  his  liberty, 
be  prevented  from  removing  himself  from  place  to  place  as  he 
chooses,  be  compelled  to  go  to  a  place  contrary  to  his  inclination, 
or  be  in  any  way  imprisoned  or  confined,  unless  by  virtue  of  the 
express  laws  of  the  land." 

Tried  by  these  principles,  we  are  unable  to  say  that  the  substitu- 
tion for  a  presentment  or  indictment  by  a  grand  jury  of  the  pro- 
ceeding by  information,  after  examination  and  commitment  by 


UNITED  STATES  v.  KAGAMA.  543 

a  magistrate,  certifying  to  the  probable  guilt  of  the  defendant, 
with  the  right  on  his  part  to  the  aid  of  counsel,  and  to  the  cross- 
examination  of  the  witnesses  produced  for  the  prosecution,  is  not 
due  process  of  law.  It  is,  as  we  have  seen,  an  ancient  proceeding 
at  common  law,  which  might  include  every  case  of  an  offense  of 
less  grade  than  a  felony,  except  misprision  of  treason;  and  in  every 
circumstance  of  its  administration,  as  authorized  by  the  statute  of 
California,  it  carefully  considers  and  guards  the  substantial  in- 
terest of  the  prisoner.  It  is  merely  a  preliminary  proceeding,  and 
can  result  in  no  final  judgment,  except  as  a  consequence  of  a  reg- 
ular judicial  trial,  conducted  precisely  as  in  cases  of  indictments. 

In  reference  to  this  mode  of  proceeding  at  the  common  law,  and 
which  he  says  "is  as  ancient  as  the  common  law  itself,"  Blackstone 
adds  (4  Com.,  305): 

"And  as  to  those  offenses  in  which  informations  were  allowed 
as  well  as  indictments,  so  long  as  they  were  confined  to  this  high 
and  respectable  jurisdiction,  and  were  carried  on  in  a  legal  and 
regular  course  in  his  Majesty's  Court  of  King's  Bench,  the  subject 
had  no  reason  to  complain.  The  same  notice  was  given,  the  same 
process  was  issued,  the  same  pleas  were  allowed,  the  same  trial  by 
jury  was  had,  the  same  judgment  was  given  by  the  same  judges^  as 
if  the  prosecution  had  originally  been  by  indictment." 

For  these  reasons,  finding  no  error  therein,  the  judgment  of  the 
Supreme  Court  of  California  is  affirmed. 

[Mr.  Justice  Harlan  rendered  a  dissenting  opinion.] 


UNITED  STATES  v.  KAGAMA. 
118  U.  S.,  375.    Decided  1886. 

The  case  is  stated  in  the  opinion  of  the  court.     ... 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  case  is  brought  here  by  certificate  of  division  of  opinion 
between  the  Circuit  Judge  and  the  District  Judge  holding  the 
Circuit  Court  of  the  United  States  for  District  of  California. 

The  questions  certified  arise  on  a  demurrer  to  an  indictment 
against  two  Indians  for  murder  committed  on  the  Indian  reserva- 
tion of  Hoopa  Valley,  in  the  State  of  California,  the  person  mur- 
dered being  also  an  Indian  of  said  reservation. 


544  CASES    ON    CONSTITUTIONAL    LAW. 

Though  there  are  six  questions  certified  as  the  subject  of  differ- 
ence, the  point  of  them  all  is  well  set  out  in  the  third  and  sixth, 
which  are  as  follows: — 

"3.  Whether  the  provisions  of  said  section  9  (of  the  act  of 
Congress  of  March  3,  1885),  making  it  a  crime  for  one  Indian 
to  commit  murder  upon  another  Indian,  upon  an  Indian  reserva- 
tion situated  wholly  within  the  limits  of  a  State  of  the  Union,  and 
making  such  Indian  so  committing  the  crime  of  murder  within  and 
upon  such  Indian  reservation  'subject  to  the  same  laws'  and 
subject  to  be  'tried  in  the  same  courts,  and  in  the  same  manner, 
and  subject  to  the  same  penalties  as  are  all  other  persons'  com- 
mitting the  crime  of  murder  'within  the  exclusive  jurisdiction  of 
the  United  States,'  is  a  constitutional  and  valid  law  of  the  United 
States?" 

"6.  Whether  the  courts  of  the  United  States  have  jurisdiction 
or  authority  to  try  and  punish  an  Indian  belonging  to  an  Indian 
tribe  for  committing  the  crime  of  murder  upon  another  Indian 
belonging  to  the  same  Indian  tribe,  both  sustaining  the  usual 
tribal  relations,  said  crime  having  been  committed  upon  an  Indian 
reservation  made  and  set  apart  for  the  use  of  the  Indian  tribe  to 
which  said  Indians  both  belong?" 

The  indictment  sets  out  in  two  counts  that  Kagama,  alias  Pactah 
Billy,  an  Indian,  murdered  lyouse,  alias  Ike,  another  Indian,  at 
Humboldt  County,  in  the  State  of  California,  within  the  limits 
of  the  Hoopa  Valley  Reservation,  and  it  charges  Mahawaha,  alias 
Ben,  also  an  Indian,  with  aiding  and  abetting  in  the  murder. 

The  law  referred  to  in  the  certificate  is  the  last  section  of  the 
Indian  appripriation  act  of  that  year,  and  is  as  follows: 

"§  9.  That  immediately  upon  and  after  the  date  of  the  passage 
of  this  act  all  Indians  committing  against  the  person  or  property 
of  another  Indian  or  other  person  any  of  the  following  crimes, 
namely,  murder,  manslaughter,  rape,  assault  with  intent  to  kill, 
arson,  burglary  and  larceny,  within  any  Territory  of  the  United 
States,  and  either  within  or  without  the  Indian  reservation,  shall 
be  subject  therefor  to  the  laws  of  said  Territory  relating  to  said 
crimes,  and  shall  be  tried  therefor  in  the  same  courts  and  in  the 
same  manner,  and  shall  be  subject  to  the  same  penalties,  as  are 
all  other  persons  charged  with  the  commission  of  the  said  crimes, 
respectively;  and  the  said  courts  are  hereby  given  jurisdiction 
in  all  such  cases;  and  all  such  Indians  committing  any  of  the 
above  crimes  against  the  person  or  property  of  another  Indian  or 
other  person,  within  the  boundaries  of  any  State  of  the  United 
States,  and  within  the  limits  of  any  Indian  reservation,  shall  be 


UNITED  STATES  v.  KAGAMA.  545 

subject  to  the  same  laws,  tried  in  the  same  courts  and  in  the  same 
manner,  and  subject  to  the  same  penalties,  as  are  all  other  persons 
committing  any  of  the  above  crimes  within  the  exclusive  juris- 
diction of  the  United  States."   23  Stat,  ch.  341,  362;  §  9,  385. 

The  above  enactment  is  clearly  separable  into  two  distinct 
definitions  of  the  conditions  under  which  Indians  may  be  punished 
for  the  same  crimes  as  defined  by  the  common  law.  The  first 
of  these  is  where  the  offense  is  committed  within  the  limits  of  a 
territorial  government,  whether  on  or  off  an  Indian  reservation. 
In  this  class  of  cases  the  Indian  charged  with  the  crime  shall  be 
judged  by  the  laws  of  the  Territory  on  that  subject,  and  tried  by 
its  courts.  This  proposition  itself  is  new  in  legislation  of  Congress, 
which  has  heretofore  only  undertaken  to  punish  an  Indian  who 
sustains  the  usual  relation  to  his  tribe,  and  who  commits  the 
offense  in  the  Indian  country,  or  on  an  Indian  reservation,  in  ex- 
ceptional cases;  as  where  the  offense  was  against  the  person  or 
property  of  a  white  man,  or  was  some  violation  of  the  trade,  and 
intercourse  regulations  imposed  by  Congress  on  the  Indian  tribes. 
It  is  new,  because  it  now  proposes  to  punish  these  offenses  when 
they  are  committed  by  one  Indian  on  the  person  or  property  of 
another. 

The  second  is  where  the  offense  is  committed  by  one  Indian 
against  the  person  or  property  of  another,  within  the  limits  of 
a  State  of  the  Union,  but  on  an  Indian  reservation.  In  this  case, 
of  which  the  State  and  its  tribunals  would  have  jurisdiction  if  the 
offense  was  committed  by  a  white  man  outside  an  Indian  reserva- 
tion, the  courts  of  the  United  States  are  to  exercise  jurisdiction 
as  if  the  offense  had  been  committed  at  some  place  within  the 
exclusive  jurisdiction  of  the  United  States.  The  first  clause  sub- 
jects all  Indians  guilty  of  these  crimes  committed  within  the  limits 
of  a  Territory,  to  the  laws  of  that  Territory,  and  to  its  courts  for 
trial.  The  second,  which  applies  solely  to  offenses  by  Indians 
which  are  committed  within  the  limits  of  a  State  and  the  limits  of 
a  reservation,  subjects  the  offenders  to  the  laws  of  the  United 
States  passed  for  the  government  of  places  under  the  exclusive 
jurisdiction  of  those  laws,  and  to  trial  by  the  courts  of  the  United 
States.  This  is  a  still  further  advance,  as  asserting  this  jurisdic- 
tion over  the  Indians  within  the  limits  of  the  States  of  the  Union. 

Although  the  offense  charged  in  this  indictment  was  com- 
mitted within  a  State  and  not  within  a  Territory,  the  considera- 
tions which  are  necessary  to  a  solution  of  the  problem  in  regard 
to  the  one  must  in  a  large  degree  affect  the  other. 

The  Constitution  of  the  United  States  is  almost  sileni  in  regard 
35 


546  CASES    ON    CONSTITUTIONAL    LAW. 

to  the  relations  of  the  government  which  was  estabhshed  by  it  to 
the  numerous  trib.es  of  Indians  within  its  borders. 

In  declaring  the  basis  on  which  representation  in  the  lower 
branch  of  Congress  and  direct  taxation  should  be  apportioned, 
it  was  fixed  that  it  should  be  according  to  numbers,  excluding  In- 
dians not  taxed,  which,  of  course,  excluded  nearly  all  of  that  race, 
but  which  meant  that  if  there  were  such  within  a  State  as  were 
taxed  to  support  the  government,  they  should  be  counted  for  rep- 
resentation, and  in  the  computation  for  direct  taxes  levied  by  the 
United  States.  This  expression,  excluding  Indians  not  taxed,  is 
found  in  the  XlVth  amendment,  where  it  deals  with  the  same 
subject  under  the  new  conditions  produced  by  the  emancipation 
of  the  slaves.  Neither  of  these  shed  much  light  on  the  power  of 
Congress  over  the  Indians  in  their  existence  as  tribes,  distinct 
from  the  ordinary  citizens  of  a  State  or  Territory. 

The  mention  of  Indians  in  the  Constitution  which  has  received 
most  attention  is  that  found  in  the  clause  which  gives  Congress 
"power  to  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  tribes." 

This  cause  is  relied  on  in  the  argument  in  the  present  case,  the 
proposition  being  that  the  statute  under  consideration  is  a  regula- 
tion of  commerce  with  the  Indian  tribes.  But  we  think  it  would 
be  a  very  strained  construction  of  this  clause,  that  a  system  of 
criminal  laws  for  Indians  living  peaceably  in  their  reservations, 
which  left  out  the  entire  code  of  trade  and  intercourse  laws  justly 
enacted  under  that  provision,  and  established  punishments  for 
the  common-law  crimes  of  murder,  manslaughter,  arson,  burglary, 
larceny,  and  the  like,  without  any  reference  to  their  relation  to 
any  kind  of  commerce,  was  authorized  by  the  grant  of  power  to 
regulate  commerce  with  the  Indian  tribes.  While  we  are  not 
able  to  see,  in  either  of  these  clauses  of  the  Constitution  and  its 
amendments,  any  delegation  of  power  to  enact  a  code  of  criminal 
law  for  the  punishment  of  the  worst  class  of  crimes  known  to 
civilized  life  when  committed  by  Indians,  there  is  a  suggestion  in 
the  manner  in  which  the  Indian  tribes  are  introduced  into  that 
clause,  which  may  have  a  bearing  on  the  subject  before  us.  The 
commerce  witli  foreign  nations  is  distinctly  stated  as  submitted 
to  the  control  of  Congress.  Were  the  Indian  tribes  foreign  na- 
tions? If  so,  they  came  within  the  first  of  the  three  classes  of 
commerce  mentioned,  and  did  not  need  to  be  repeated  as  Indian 
tribes.  Were  they  nations;  in  the  minds  of  the  framers  of  the 
Constitution?  If  so,  the  natural  phrase  would  have  been  "foreign 
nations  and  Indian  nations,"  or,  in  the  terseness  of  language  uni- 


UNITED  STATES  V.  KAGAMA.  547 

formly  used  by  the  framers  of  the  instrument,  it  would  naturally 
have  been  "foreign  and  Indian  nations."  And  so  in  the  case  of 
The  Cherokee  Nation  v.  The  State  of  Georgia,  5  Pet.,  1,  20,  brought 
in  the  Supreme  Court  of  the  United  States,  under  the  declara- 
tion that  the  judicial  power  extends  to  suits  between  a  State  and 
foreign  States,  and  giving  to  the  Supreme  Court  original  jurisdic- 
tion where  a  State  is  a  party,  it  was  conceded  that  Georgia  as  a 
State  came  within  the  clause,  but  held  that  the  Cherokees  were 
not  a  State  or  nation  within  the  meaning  of  the  Constitution,  so 
as  to  be  able  to  maintain  the  suit. 

But  these  Indians  are  within  the  geographical  limits  of  the  United 
States.  The  soil  and  the  people  within  these  limits  are  under  the 
political  control  of  the  government  of  the  United  States,  or  of 
the  States  of  the  Union.  There  exist  within  the  broad  domain  of 
sovereignty  but  these  two.  There  may  be  cities,  counties,  and 
other  organized  bodies  with  limited  legislative  functions,  but  they 
are  all  derived  from,  or  exist  in,  subordination  to  one  or  the  other 
of  these.  The  territorial  governments  owe  all  their  powers  to  the 
statutes  of  the  United  States  conferring  on  them  the  powers  which 
they  exercise,  and  which  are  liable  to  be  withdrawn,  modified,  or 
repealed  at  any  time  by  Congress.  What  authority  the  State  gov- 
ernments may  have  to  enact  criminal  laws  for  the  Indians  will 
be  presently  considered.  But  this  power  of  Congress  to  organize 
territorial  governments,  and  make  laws  for  their  inhabitants,  arises 
not  so  much  from  the  clause  in  the  Constitution  in  regard  to  dis- 
posing of  and  making  rules  and  regulations  concerning  the  Terri- 
tory and  other  property  of  the  United  States,  as  from  the  owner- 
ship of  the  country  in  which  the  Territories  are,  and  the  right  of 
exclusive  sovereignty  which  must  exist  in  the  national  government, 
and  can  be  found  nowhere  else.  Murphy  v.  Eamsey,  114  U.  S., 
15,  44. 

In  the  case  of  American  Ins.  Co.  v.  Canter,  1  Pet.,  511,  542,  in 
which  the  condition  of  the  people  of  Florida,  then  under  a  terri- 
torial government,  was  under  consideration,  Marshall,  Chief  Jus- 
tice, said:  "Perhaps  the  power  of  governing  a  Territory  belonging 
to  the  United  States,  which  has  not,  by  becoming  a  State,  acquired 
the  means  of  self-government,  may  result  necessarily  from  the  fact 
that  it  is  not  within  the  jurisdiction  of  any  particular  State,  and 
is  within  the  power  and  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  inevitable  consequence  of  the  right  to 
acquire  territory.  Whichever  may  be  the  source  whence  the  power 
is  derived,  the  possession  of  it  is  unquestioned." 

In  the  case  of  the  United  States  v.  Rogers,  4  IIow.,  567,  572, 


548  CASES    ON    CONSTITUTIONAL    LAW. 

^vhere  a  white  man  pleaded  in  abatement  to  an  indictment  for 
murder  committed  in  the  country  of  the  Cherokee  Indians,  that  he 
had  been  adopted  by  and  become  a  member  of  the  Cherokee  tribe, 
Chief  Justice  Taney  said:  "The  country  in  which  the  crime  is 
charged  to  have  been  committed  is  a  part  of  the  territory  of  the 
United  States,  and  not  within  the  limits  of  any  particular  State. 
It  is  true  it  is  occupied  by  the  Cherokee  Indians.  But  it  has  been 
assigned  to  them  by  the  United  States  as  a  place  of  domicil  for  the 
-tribe,  and  they  hold  with  the  assent  of  the  United  States,  and 
under  their  authority.''  After  referring  to  the  policy  of  the  Euro- 
pean nations  and  the  United  States  in  asserting  dominion  over 
all  the  country  discovered  by  them,  and  the  justice  of  this  course, 
he  adds:  "But  had  it  been  otherwise,  and  were  the  right  and  the 
propriety  of  exercising  this  power  now  open  to  question,  yet  it  is 
a  question  for  the  law-making  and  political  departments  of  the 
government,  and  not  for  the  judicial.  It  is  our  duty  to  expound 
and  execute  ■the  law  as  we  find  it,  and  we  think  it  too  firmly  and 
clearly  established  to  admit  of  dispute,  that  the  Indian  tribes, 
residing  within  the  territorial  limits  of  the  United  States,  are  sub- 
ject to  their  authority,  and  when  the  country  occupied  by  one  of 
them  is  not  within  the  limits  of  one  of  the  States,  Congress  may 
by  law  punish  any  offense  committed  there,  no  matter  whether 
the  offender  be  a  white  man  or  an  Indian." 

The  Indian  reservation  in  the  case  before  us  is  land  bought  by 
the  United  States  from  Mexico  by  the  treaty  of  Guadaloupe  Hi- 
dalgo, and  the  whole  of  California,  with  the  allegiance  of  its  in- 
habitants, many  of  whom  were  Indians,  was  transferred  by  that 
treaty  to  the  United  States. 

The  relation  of  the  Indian  tribes  living  within  the  borders  of  the 
United  States,  both  before  and  since  the  Eevolution,  to  the  people 
of  the  United  States  has  always  been  an  anomalous  one  and  of  a 
complex  character. 

Following  the  policy  of  the  European  governments  in  the  dis-. 
covery  of  America  towards  the  Indians  who  were  found  here,  the 
colonies  before  the  Eevolution  and  the  States  and  the  United 
States  since,  have  recognized  in  the  Indians  a  possessory  right  to 
the  soil  over  which  they  roamed  and  hunted  and  established  occa- 
sional villages.  But  they  asserted  an  ultimate  title  in  the  land 
itself,  by  which  the  Indian  tribes  were  forbidden  to  sell  or  transfer 
it  to  other  nations  or  peoples  without  the  consent  of  this  para- 
mount authority.  When  a  tribe  wished  to  dispose  of  its  land,  or 
any  part  of  it,  or  the  State  or  the  United  States  wished  to  pur- 
chase it,  a  treaty  with  the  tribe  was  the  only  mode  in  which  this 


UNITED  STATES  V.  KAGAMA.  549 

could  be  done.  The  United  States  recognized  no  right  in  private 
persons,  or  in  other  nations,  to  make  such  a  purchase  by  treaty 
or  otherwise.  With  the  Indians  themselves  these  relations  are 
equally  difficult  to  define.  They  were,  and  always  have  been,  re- 
garded as  having  a  semi-independent  position  when  they  preserved 
their  tribal  relations;  not  as  States,  not  as  nations,  not  as  pos- 
sessed of  the  full  attributes  of  sovereignty,  but  as  a  separate  peo- 
ple, with  the  power  of  regulating  their  internal  and  social  rela- 
tions, and  thus  far  not  brought  under  the  laws  of  the  Union 
or  of  the  State  within  whose  limits  they  resided. 

Perhaps  the  best  statement  of  their  position  is  found  in  the 
two  opinions  of  this  court  by  Chief  Justice  Marshall  in  the  case  of 
The  Cherokee  Nation  v.  Georgia,  5  Pet.,  1,  and  in  the  case  of 
Worcester  v.  State  of  Georgia,  6  Pet.,  515,  536.  These  opinions  are 
exhaustive;  and  in  the  separate  opinion  of  Mr.  Justice  Baldwin,  in 
the  former,  is  a  very  valuable  resume  of  the  treaties  and  statutes 
concerning  the  Indian  tribes  previous  to  and  during  the  confed- 
eration. 

In  the  first  of  the  above  cases  it  was  held  that  these  tribes  were 
neither  States  nor  nations,  had  only  some  of  the  attributes  of  sov- 
ereignty, and  could  not  be  so  far  recognized  in  that  capacity  as 
to  sustain  a  suit  in  the  Supreme  Court  of  the  United  States.  In 
the  second  case  it  was  said  that  they  were  not  subject  to  the  juris- 
diction asserted  over  them  by  the  State  of  Georgia,  which,  because 
they  were  within  its  limits,  where  they  had  been  for  ages,  had 
attempted  to  extend  her  laws  and  the  jurisdiction  of  her  courts 
over  them. 

In  the  opinions  in  these  cases  they  are  spoken  of  as  "wards  of 
the  nation,"  '^pupils,"  as  local  dependent  communities.  In  this 
spirit  the  United  States  has  conducted  its  relations  to  them  from 
its  organization  to  this  time.  But,  after  an  experience  of  a  hun- 
dred years  of  the  treaty-making  system  of  government.  Congress 
has  determined  upon  a  new  departure — to  govern  them  by  acts  of 
Congi-ess.  This  is  seen  in  the  act  of  March  3,  1871,  embodied  in 
§  2079  of  the  Eevised  Statutes: 

"No  Indian  nation  or  tribe,  within  the  territory  of  the  United 
States,  shall  be  acknowledged  or  recognized  as  an  independent 
nation,  tribe,  or  power,  with  whom  the  United  States  may  con- 
tract by  treaty;  but  no  obligation  of  any  treaty  lawfully  made  and 
ratified  with  any  such  Indian  nation  or  tribe  prior  to  March  third, 
eighteen  hundred  and  seventy-one,  shall  be  hereby  invalidated  or 
impaired." 

The  case  of  Crow  Dog,  109  U.  S.,  556,  in  which  an  agreement 


550  CASES    ON    CONSTITUTIONAL    LAW. 

with  the  Sioux  Indians,  ratified  by  an  act  of  Congress,  was  sup- 
posed to  extend  over  them  the  laws  of  the  United  States  and  the 
jurisdiction  of  its  courts,  covering  murder  and  other  grave  crimes, 
shows  the  purpose  of  Congress  in  this  new  departure.  The  de- 
cision in  that  case  admits  that  if  the  intention  of  Congress  had 
been  to  punish,  by  the  United  States  courts,  the  murder  of  one 
Indian  by  another,  the  law  would  have  been  valid.  But  the  court 
could  not  see,  in  the  agreement  with  the  Indians  sanctioned  by 
Congress,  a  purpose  to  repeal  §  2146  of  the  Kevised  Statutes, 
which  expressly  excludes  from  that  jurisdiction  the  case  of  a  crime 
committed  by  one  Indian  against  another  in  the  Indian  country. 
The  passage  of  the  act  now  under  consideration  was  designed  to 
remove  that  objection,  and  to  go  further  by  including  such  crimes 
on  reservations  lying  within  a  State. 

Is  this  latter  fact  a  fatal  objection  to  the  law?  The  statute  itself 
contains  no  express  limitations  upon  the  powers  of  a  State  or  the 
jurisdiction  of  its  courts.  If  there  be  any  limitation  in  either  of 
these,  it  grows  out  of  the  implication  arising  from  the  fact  that 
Congress  has  defined  a  crime  committed  within  the  State,  and 
made  it  punishable  in  the  courts  of  the  United  States.  But  Con- 
gress has  done  this,  and  can  do  it  with  regard  to  all  offenses  relat- 
ing to  matters  to  which  the  Federal  authority  extends.  Does  that 
authority  extend  to  this  case? 

It  will  be  seen  at  once  that  the  nature  of  the  offense  (murder) 
is  one  which  in  almost  all  cases  of  its  commisison  is  punishable 
by  the  laws  of  the  States,  and  within  the  jurisdiction  of  their 
courts.  The  distinction  is  claimed  to  be  that  the  offense  under 
the  statute  is  committed  by  an  Indian,  that  it  is  committed  on  a 
reservation  set  apart  within  the  State  for  the  residence  of  the  tribe 
of  Indians  by  the  United  States,  and  the  fair  inference  is  that 
the  offending  Indian  shall  belong  to  that  or  some  other  tribe. 
It  does  not  interfere  with  the  process  of  the  State  courts  within 
the  reservation,  nor  with  the  operation  of  State  laws  upon  white 
people  found  there.  Its  effect  is  confined  to  tlie  acts  of  an  Indian 
of  some  tribe,  of  a  criminal  character,  committed  within  the  limits 
of  the  reservation. 

It  seems  to  us  that  this  is  within  the  competency  of  Congress. 
These  Indian  tribes  are  the  wards  of  the  nation.  They  are  com- 
munities dependent  on  the  United  States.  Dependent  largely  for 
their  food.  Dependent  for  their  political  rights.  They  owe  no 
allegiance  to  the  States,  and  receive  from  them  no  protection.  Be- 
cause of  the  local  ill  feeling,  the  people  of  the  States  where  they 
are  found  are  often  their  deadliest  enemies.    From  their  very  weak- 


UNITED  STATES  v.  KAGAMA.  551 

ness  and  helplessness,  so  largely  due  to  the  course  of  dealing  of 
the  Federal  Government  with  them  and  the  treaties  in  which  it  has 
been  promised,  there  arises  the  duty  of  protection,  and  with  it  the 
power.  This  has  always  been  recognized  by  the  Executive  and 
by  Congress,  and  by  this  court,  whenever  the  question  has  arisen. 

In  the  case  of  Worcester  v.  The  State  of  Georgia,  above  cited, 
it  was  held  that,  though  the  Indians  had  by  treaty  sold  their  land 
within  that  State  and  agreed  to  remove  away,  which  they  failed 
to  do,  the  State  could  not,  while  they  remained  on  those  lands, 
extend  its  laws,  criminal  and  civil,  over  the  tribes;  that  the  duty 
and  power  to  compel  their  removal  was  in  the  United  States,  and 
the  tribe  was  under  their  protection,  and  could  not  be  subjected 
to  the  laws  of  the  State  and  the  process  of  its  courts. 

The  same  thing  was  decided  in  the  case  of  Fellows  v.  Black- 
smith &  Others,  19  How.,  366.  In  this  case,  also,  the  Indians  had 
sold  their  lands  under  supervision  of  the  States  of  Massachusetts 
and  New  York,  and  had  agreed  to  remove  within  a  given  time. 
When  the  time  came  a  suit  to  recover  some  of  the  land  was  brought 
in  the  Supreme  Court  of  New  York,  which  gave  judgment  for  the 
plaintiff.  But  this  court  held,  on  writ  of  error,  that  the  State  could 
not  enforce  this  removal,  but  the  duty  and  power  to  do  so  was 
in  the  United  States.  See  also  the  case  of  the  Kansas  Indians,  5 
Wall.,  737;  New  York  Indians,  5  Wall.,  761. 

The  power  of  the  General  Government  over  these  remnants  of 
a  race  once  powerful,  now  weak  and  diminished  in  numbers,  is 
necessary  to  their  protection,  as  well  as  to  the  safety  of  those  among 
whom  they  dwell.  It  must  exist  in  that  government,  because  it 
never  has  existed  anywhere  else,  because  the  theater  of  its  exercise 
is  within  the  geographical  limits  of  the  United  States,  because  it 
has  never  been  denied,  and  because  it  alone  can  enforce  its  laws 
on  all  the  tribes. 

We  answer  the  questions  propounded  to  us,  that  the  9th  section 
of  the  act  of  March,  1885,  is  a  valid  law  iti  both  its  branches,  and 
that  the  Circuit  Court  of  the  United  States  for  the  District  of  Cali- 
fornia has  jurisdiction  of  the  offense  charged  in  the  indictment 
in  this  case. 

Note.— In  United  States  v.  Wong  Kim  Ark,  169  U.  S.,  649 
(1898),  the  court  held  that  a  child  born  in  California  of  parents 
subject  to  the  Emperor  of  China  was  born  a  citizen  of  the  United 
States,  even  though  his  parents  were  by  law  expressly  excluded 
from  American  citizenship.  On  this  decision  see  Boyd,  "The 
Basis  of  Citizenship,"  in  The  Nation  for  July  7,  1898. 


XII.    THE  FEDERAL  GOVERNMENT  AND 
THE  STATES. 


TEXAS  V.  WHITE  et  al. 
7  Wallace,  700.    Decided  1868. 
[The  facts  are  suflficiently  stated  in  the  opinion  of  the  court.] 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

This  is  an  original  suit  in  this  court,  in  which  the  State  of  Texas, 
claiming  certain  bonds  of  the  United  States  as  her  property,  asks 
an  injunction  to  restrain  the  defendants  from  receiving  payment 
from  the  National  government,  and  to  compel  the  surrender  of  the 
bonds  to  the  State. 

It  appears  from  the  bill,  answers,  and  proofs,  that  the  United 
States,  by  act  of  September  9,  1850,  offered  to  the  State  of  Texas, 
in  compensation  for  her  claims  connected  with  the  settlement  of 
her  boundary,  $10,000,000  in  five  per  cent,  bonds,  each  for  the 
sum  of  $1,000;  and  that  this  offer  was  accepted  by  Texas.  One- 
half  of  these  bonds  were  retained  for  certain  purposes  in  the  Na- 
tional treasury,  and  the  other  half  were  delivered  to  the  State. 
The  bonds  thus  delivered  were  dated  January  1,  1851,  and  were  all 
made  payable  to  the  State  of  Texas,  or  bearer,  and  redeemable 
after  the  31st  day  of  December,  1864.  They  were  received  in  behalf 
of  the  State  by  the  comptroller  of  public  accounts,  under  authority 
of  an  act  of  the  legislature,  which,  besides  giving  that  authority, 
provided  that  no  bond  should  be  available  in  the  hands  of  any 
holder  until  after  indorsement  by  the  governor  of  the  State. 

After  the  breaking  out  of  the  rebellion,  the  insurgent  legislature 
of  Texas,  on  the  11th  of  January,  1862,  repealed  the  act  requiring 
the  indorsement  of  the  governor,^  and  on  the  same  day  provided 
for  the  organization  of  a  military  board,  composed  of  the  governor, 
comptroller,  and  treasurer;  and  authorized  a  majority  of  that  board 
to  provide  for  the  defense  of  the  State  by  means  of  any  bonds  in 
the  treasury,  upon  any  account,  to  the  extent  of  $1,000,000.''    The 

1  Acts  of  Texas,  1862,  p.  45.  2  Texas  Laws,  55. 

552 


TEXAS  V.  WHITE.  553 

defense  contemplated  by  the  act  was  to  be  made  against  the  United 
States  by  war.  Under  this  authority  the  military  board  entered 
into  an  agreement  with  George  W.  White  and  John  Chiles,  two 
of  the  defendants,  for  the  sale  to  them  of  one  hundred  and  thirty-i. 
five  of  these  bonds,  then  in  the  treasury  of  the  State,  and  seventy^ 
six  more,  than  deposited  with  Droege  &  Co.,  in  England;  in  pay- 
ment for  which  they  engaged  to  deliver  to  the  board  a  large  quan- 
tity of  cotton  cards  and  medicines.  This  agreement  was  made  on* 
the  12th  of  January,  1865.  On  the  12th  of  March,  1865,  White  and 
Chiles  received  from  the  military  board  one  hundred  and  thirty- 
five  of  these  bonds,  none  of  which  were  indorsed  by  any  governor 
of  Texas.  Aftervs-ard,  in  the  course  of  the  years  1865  and  1866, 
some  of  the  same  bonds  came  into  the  possession  of  others  of  the 
defendants,  by  purchase,  or  as  security  for  advances  of  money. 

Such  is  a  brief  outline  of  the  case.  It  will  be  necessary  here- 
after to  refer  more  in  detail  to  some  particular  circumstances  of  it. 

The  first  inquiries  to  which  our  attention  was  directed  by  coun- 
sel, arose  upon  the  allegations  of  the  answer  of  Chiles  (1)  that  no 
sufficient  authority  is  shown  for  the  prosecution  of  the  suit  in 
the  name  and  on  the  behalf  of  the  State  of  Texas;  and  (2)  that 
the  State,  having  severed  her  relations  with  a  majority  of  the 
States  of  the  Union,  and  having  by  her  ordinance  of  secession  at- 
tempted to  throw  off  her  allegiance  to  the  Constitution  and  gov- 
ernment of  the  United  States,  has  so  far  changed  her  status  as 
to  be  disabled  from  prosecuting  suits  in  the  National  courts. 

The  first  of  these  allegations  is  disproved  by  the  evidence.  A 
letter  of  authority,  the  authenticity  of  which  is  not  disputed,  has 
been  produced,  in  which  J.  W.  Throckmorton,  elected  governor 
under  the  constitution  adopted  in  1866,  and  proceeding  under 
an  act  of  the  State  legislature  relating  to  these  bonds,  expressly 
ratifies  and  confirms  the  action  of  the  solicitors  who  filed  the  bill, 
and  empowers  them  to  prosecute  this  suit;  and  it  is  further  proved 
by  the  affidavit  of  Mr.  Paschal,  counsel  for  the  complainant,  that 
he  was  duly  appointed  by  Andrew  J.  Hamilton,  while  provisional 
governor  of  Texas,  to  represent  the  State  of  Texas  in  reference  to 
the  bonds  in  controversy,  and  that  his  appointment  has  been 
renewed  by  E.  M.  Pease,  the  actual  governor.  If  Texas  was  a  State 
of  the  Union  at  the  time  of  these  acts,  and  these  persons  or  either 
of  them,  were  competent  to  represent  the  State,  this  proof  leaves  no 
doubt  about  the  question  of  authority. 

The  other  allegation  presents  a  question  of  jurisdiction.  It  is 
not  questioned  that  this  court  has  original  jurisdiction  of  suits  by 
States  against  citizens  of  other  States,  or  that  the  States  entitled 


654  CASES    ON    CONSTITUTIONAL    LAW. 

to  invoke  this  jurisdiction  must  be  States  of  the  Union.  But,  it 
is  equally  clear  that  no  such  jurisdiction  has  been  conferred  upon 
this  court  of  suits  by  any  other  political  communities  than  such 
States. 

If,  therefore,  it  is  true  that  the  State  of  Texas  was  not  at  the 
■time  of  filing  this  bill,  or  is  not  now,  one  of  the  United  States,  wo 
have  no  jurisdiction  of  this  suit,  and  it  is  our  duty  to  dismiss  it. 

It  [the  word  state]  describes  sometimes  a  people  or  community 
of  individuals  united  more  or  less  closely  in  political  relations, 
inhabiting  temporarily  or  permanently  the  same  country;  often 
it  denotes  only  the  country  or  territorial  region,  inhabited  by  such 
a  community;  not  unfrequently  it  is  applied  to  the  government 
under  which  the  people  live;  at  other  times  it  represents  the 
combined  idea  of  people,  territory,  and  government.     .     .     . 

In  the  Constitution  the  term  state  most  frequently  expresses 
the  combined  idea  just  noticed,  of  people,  territory,  and  govern- 
ment. A  State,  in  the  ordinary  sense  of  the  Constitution,  is  a 
political  community  of  free  citizens,  occupying  a  territory  of  de- 
fined boundaries,  and  organized  under  a  government  sanctioned 
and  limited  by  a  written  constitution,  and  established  by  the  con- 
sent of  the  governed.  It  is  the  union  of  such  states,  under  a  com- 
mon constitution,  which  forms  the  distinct  and  greater  political 
unit,  which  that  Constitution  designates  as  the  United  States,  and 
makes  of  the  people  and  states  which  compose  it  one  people  and 
one  country.     .     .     . 

In  all  respects,  so  far  as  the  objects  could  be  accomplished  by 
ordinances  of  the  convention,  by  acts  of  the  legislature,  and  by 
votes  of  the  citizens,  the  relations  of  Texas  to  the  Union  were 
broken  up,  and  new  relations  to  a  new  government  were  established 
for  them. 

The  position  thus  assumed  could  only  be  maintained  by  arms,  and 
Texas  accordingly  took  part,  with  the  other  Confederate  States,  in 
the  war  of  the  rebellion,  which  these  events  made  inevitable.  Dur- 
ing the  whole  of  that  war  there  was  no  governor,  or  judge,  or  any 
other  State  officer  in  Texas,  who  recognized  the  National  author- 
ity. Nor  was  any  officer  of  the  United  States  permitted  to  exer- 
cise any  authority  whatever  under  the  National  government  within 
the  limits  of  the  States,  except  under  the  immediate  protection  of 
the  National  military  forces. 

Did  Texas,  in  consequence  of  these  acts,  cease  to  be  a  State?  Or, 
if  not,  did  the  State  cease  to  be  a  member  of  the  Union? 

It  is  needless  to  discuss,  at  length,  the  question  whether  the  right 


i 


TEXAS  V.  WHITE.  555 

of  a  state  to  withdraw  from  the  Union  for  any  cause,  regarded  by 
herself  as  sufficient,  is  consistent  wath  the  Constitution  of  the 
United  States. 

The  Union  of  the  States  never  was  a  purely  artificial  and  arbi- 
trary relation.  It  began  among  the  Colonies,  and  grew  out  of  com- 
mon origin,  mutual  sympathies,  kindred  principles,  similar  inter- 
ests, and  geographical  relations.  It  was  confirmed  and  strength- 
ened by  the  necessities  of  war,  and  received  definite  form,  and 
character,  and  sanction  from  the  Articles  of  Confederation.  By 
these  the  Union  was  solemnly  declared  to  "be  perpetual."  And 
when  these  Articles  were  found  to  be  inadequate  to  the  exigencies 
of  the  country,  the  Constitution  was  ordained  "to  form  a  more 
perfect  Union."  It  is  difficult  to  convey  the  idea  of  indissoluble 
unity  more  clearly  than  by  these  words.  What  can  be  indissoluble 
if  a  perpetual  Union,  made  more  perfect,  is  not? 

But  the  perpetuity  and  indissolubility  of  the  Union,  by  no  means 
implies  the  loss  of  distinct  and  individual  existence,  or  of  the  right 
of  self-government  by  the  States.  Under  the  Articles  of  Confed- 
eration, each  State  retained  its  sovereignty,  freedom,  and  inde- 
pendence, and  every  power,  jurisdiction,  and  right  not  expressly 
delegated  to  the  United  States.  Under  the  Constitution,  though 
the  powers  of  the  States  w^ere  much  restricted,  still,  all  powers  not 
delegated  to  the  United  States,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people.  And  we  have 
already  had  occasion  to  remark  at  this  term,  that  "the  people  of 
each  State  compose  a  State,  having  its  own  government,  and  en- 
dowed with  all  the  functions  essential  to  separate  and  independent 
existence,"  and  that  "without  the  States  in  union,  there  could  be 
no  such  political  body  as  the  United  States."^  Not  only  therefore 
can  there  be  no  loss  of  separate  and  independent  autonomy  to  the 
States,  through  their  union  and  under  the  Constitution,  but  it 
may  be  not  unreasonably  said  that  the  preservation  of  the  States, 
and  the  maintenance  of  their  governments,  are  as  much  within 
the  design  and  gare  of  the  Constitution  as  the  preservation  of  the 
Union  and  the  maintenance  of  the  National  government.  The 
Constitution,  in  all  of  its  provisions,  looks  to  an  indestructible 
Union,  composed  of  indestructible  States. 

When,  therefore,  Texas  became  one  of  the  United  States,  she 
entered  into  an  indissoluble  relation.  All  the  obligations  of  per- 
petual union  and  all  the  guarantees  of  republican  government  in 
the  Union,  attached  at  once^  to  the  State.     The  act  which  con- 

1  County  of  Lane  v.  The  State  of  Oregon,  7  Wallace,  76. 


556  CASES    ON    CONSTITUTIONAL    LAW. 

summated  her  admission  into  the  Union  was  something  more  than 
a  compact;  it  was  the  incorporation  of  a  new  member  into  the 
political  body.  And  it  was  final.  The  union  between  Texas  and 
the  other  States  was  as  complete,  as  perpetual,  and  as  indissoluble 
as  the  union  between  the  original  States.  There  was  no  place  for 
reconsideration,  or  revocation,  except  through  revolution,  or 
through  consent  of  the  States. 

Considered  therefore  as  transacted  under  the  Constitution,  the 
ordinance  of  secession,  adopted  by  the  convention  and  ratified  by 
a  majority  of  the  citizens  of  Texas,  and  all  the  acts  of  her  legisla- 
ture intended  to  give  effect  to  that  ordinance,  were  absolutely  null. 
They  were  utterly  without  operation  in  law.  The  obligations  of 
the  State,  as  a  member  of  the  Union,  and  of  every  citizen  of  the 
State,  as  a  citizen  of  the  United  States,  remained  perfect  and  unim- 
paired.' It  certainly  follows  that  the  State  did  not  cease  to  be  a 
State,  nor  her  citizens  to  be  citizens  of  the  Union.  If  this  were 
otherwise,  the  State  must  have  become  foreign,  and  her  citizens 
foreigners.  The  war  must  have  ceased  to  be  a  war  for  the  sup- 
pression of  rebellion,  and  must  have  become  a  war  for  conquest  and 
subjugation. 

Our  conclusion  therefore  is,  that  Texas  continued  to  be  a  State, 
and  a  State  of  the  Union,  notwithstanding  the  transactions  to 
which  we  have  referred.  And  this  conclusion,  in  our  judgment, 
is  not  in  conflict  with  any  act  or  declaration  of  any  department  of 
the  National  government,  but  entirely  in  accordance  with  the  whole 
series  of  such  acts  and  declarations  since  the  first  outbreak  of  the 
rebellion. 

But  in  order  to  the  exercise,  by  a  State,  of  the  right  to  sue  in 
this  court,  there  needs  to  be  a  State  government,  competent  to 
represent  the  State  in  its  relations  with  the  National  government, 
so  far  at  least  as  the  institution  and  prosecution  of  a  suit  is  con- 
cerned. 

And  it  is  by  no  means  a  logical  conclusion,  from  the  premises 
which  we  have  endeavored  to  establish,  that  the  governmental 
relations  of  Texas  to  the  Union  remained  unaltered.  Obligations 
often  remain  unimpaired,  while  relations  are  greatly  changed. 
The  obligations  of  allegiance  to  the  State,  and  of  obedience  to  her 
laws,  subject  to  the  Constitution  of  the  United  States,  are  binding 
upon  all  citizens,  whether  faithful  or  unfaithful  to  them;  but  the 
relations  which  subsist  while  these  obligations  are  performed,  are 
essentially  different  from  those  which  arise  when  they  are  disre- 
garded and  set  at  nought.  And  the  same  must  necessarily  be  true 
of  the  obligations  and  relations  of  States  and  citizens  to  the  Union. 


TEXAS  V.  WHITE.  557 

No  one  has  been  bold  enough  to  contend  that,  while  Texas  was  con- 
trolled by  a  government  hostile  to  the  United  States,  and  in  affilia- 
tion with  a  hostile  confederation,  waging  war  upon  the  United 
States,  senators  chosen  by  her  legislature,  or  representatives  elected 
by  her  citizens,  were  entitled  to  seats  in  Congress;  or  that  any  suit, 
instituted  in  her  name,  could  be  entertained  in  this  court.  All 
admit  that,  during  this  condition  of  civil  war,  the  rights  of  the 
State  as  a  member,  and  of  her  people  as  citizens  of  the  Union, 
were  suspended.  The  government  and  the  citizens  of  the  State, 
refusing  to  recognize  their  constitutional  obligations,  assumed  the 
character  of  enemies,  and  incurred  the  consequences  of  rebellion. 

These  new  relations  imposed  new  duties  upon  the  United  States. 
The  first  was  that  of  suppressing  the  rebellion.  The  next  was 
that  of  re-establishing  the  broken  relations  of  the  State  with  the 
Union.  The  first  of  these  duties  having  been  performed,  the  next 
necessarily  engaged  the  attention  of  the  National  government. 

The  authority  for  the  performance  of  the  first  had  been  found 
in  the  power  to  suppress  insurrection  and  carry  on  war;  for  the 
performance  of  the  second,  authority  was  derived  from  the  obliga- 
tion of  the  United  States  to  guarantee  to  every  State  in  the  Union 
a  republican  form  of  government.  The  latter,  indeed,  in  the  case 
of  a  rebellion  which  involves  the  government  of  a  State,  and  for 
the  time  excludes  the  National  authority  from  its  limits,  seems  to 
be  a  necessary  complement  to  the  former. 

Of  this,  the  case  of  Texas  furnishes  a  striking  illustration.  When 
the  war  closed  there  was  no  government  in  the  State  except  that 
which  had  been  organized  for  the  purpose  of  waging  war  against 
the  United  States.  That  government  immediately  disappeared. 
The  chief  functionaries  left  the  State.  Many  of  the  subordinate 
officials  followed  their  example.  Legal  responsibilities  were  an- 
nulled or  greatly  impaired.  It  was  inevitable  that  great  confusion 
should  prevail.  If  order  was  maintained,  it  was  where  the  good 
sense  and  virtue  of  the  citizens  gave  support  to  local  acting  magis- 
trates, or  supplied  more  directly  the  needful  restraints. 

A  great  social  change  increased  the  difficulty  of  the  situation. 
Slaves,  in  the  insurgent  States,  with  certain  local  exceptions,  had 
been  declared  free  by  the  Proclamation  of  Emancipation;  and 
whatever  questions  might  be  made  as  to  the  effect  of  that  act, 
under  the  Constitution,  it  was  clear,  from  the  beginning,  that  its 
practical  operation,  in  connection  with  legislative  acts  of  like 
tendency,  must  be  complete  enfranchisement.  Wherever  the  Na- 
tional forces  obtained  control,  the  slaves  became  freemen.  Sup- 
port to  the  acts  of  Congress  and  the  proclamation  of  the  President, 


558  CASES    ON    CONSTITUTIONAL    LAW. 

concerning  slaves,  was  made  a  condition  of  amnesty^  by  President 
Lincoln,  in  December,  1863,  and  by  President  Johnson,  in  May, 
1865.^  And  emancipation  was  confirmed,  rather  than  ordained, 
in  the  insurgent  States,  by  the  amendment  to  the  Constitution 
prohibiting  slavery  throughout  the  Union,  which  was  proposed  by 
Congress  in  February,  1865,  and  ratified,  before  the  close  of  the 
following  autumn,  by  the  requisite  three-fourths  of  the  States.' 

The  new  freemen  necessarily  became  part  of  the  people,  and  the 
people  still  constituted  the  State;  for  States,  like  individuals,  retain 
their  identity,  though  changed  to  some  extent  in  their  constituent 
elements.  And  it  was  the  State,  thus  constituted,  which  was  now 
entitled  to  the  benefit  of  the  constitutional  guarantee. 

There  being  then  no  government  in  Texas  in  constitutional  re- 
lations with  the  Union,  it  became  the  duty  of  the  United  States  to 
provide  for  the  restoration  of  such  a  government.  But  the  restora- 
tion of  the  government  which  existed  before  the  rebellion,  without 
a  new  election  of  officers,  was  obviously  impossible;  and  before 
any  such  election  could  be  properly  held,  it  was  necessary  that  the 
old  Constitution  should  receive  such  amendments  as  would  con- 
form its  provisions  to  the  new  conditions  created  by  emancipation, 
and  afford  adequate  security  to  the  people  of  the  State. 

In  the  exercise  of  the  power  conferred  by  the  guarantee  clause, 
as  in  the  exercise  of  every  other  constitutional  power,  a  discretion 
in  the  choice  of  means  is  necessarily  allowed.  It  is  essential  only 
that  the  means  must  be  necessary  and  proper  for  carrying  into 
execution  the  power  conferred,  through  the  restoration  of  the 
State  to  its  constitutional  relations,  under  a  republican  form  of 
government,  and  that  no  acts  be  done,  and  no  authority  exerted, 
which  is  either  prohibited  or  unsanctioned  by  the  Constitution. 

It  is  not  important  to  review,  at  length,  the  measures  which 
have  been  taken,  under  this  power,  by  the  executive  and  legislative 
departments  of  the  National  government.  It  is  proper,  however, 
to  observe  that  almost  immediately  after  the  cessation  of  organ- 
ized hostilities,  and  while  the  war  yet  smouldered  in  Texas,  the 
President  of  the  United  States  issued  his  proclamation  appointing 
a  provisional  governor  for  the  State,  and  providing  for  the  assem- 
bling of  a  convention,  with  a  view  to  the  re-establishment  of  a 
republican  government,  under  an  amended  constitution,  and  to 
the  restoration  of  the  State  to  her  proper  constitutional  relations. 
A  convention  was  accordingly  assembled,  the  constitution  amended, 

1 13  Stats,  at  Large,  737.  s  ib.,  774-775. 

2  lb.,  758. 


TEXAS  V.   WHITE.  559 

elections  held,  and  a  State  government,  acknowledging  its  obliga- 
tions, to  the  Union,  established. 

Whether  the  action  then  taken  was,  in  all  respects,  warranted  by 
the  Constitution,  it  is  not  now  necessary  to  determine.  The  power 
exercised  by  the  President  was  supposed,  doubtless,  to  be  derived 
from  his  constitutional  functions,  as  commander-in-chief;  and,  so 
long  as  the  war  continued,  it  cannot  be  denied  that  he  might  insti- 
tute temporary  government  within  insurgent  districts,  occupied  by 
the  Xational  forces,  or  take  measures,  in  any  State,  for  the  restora- 
tion of  State  government  faithful  to  the  Union,  emplo}ang,  how- 
ever, in  such  efforts,  only  such  means  and  agents  as  were  author- 
ized by  constitutional  laws. 

But  the  power  to  carry  into  effect  the  clause  of  guarantee  is  pri- 
marily a  legislative  power,  and  resides  in  Congress.  "Under  the 
fourth  article  of  the  Constitution,  it  rests  with  Congress  to  decide 
what  government  is  the  established  one  in  a  State.  For,  as  the 
United  States  guarantee  to  each  State  a  republican  government. 
Congress  must  necessarily  decide  what  government  is  established 
in  the  State,  before  it  can  determine  whether  it  is  republican  or 
not." 

This  is  the  language  of  the  late  Chief  Justice,  speaking  for  this 
court,  in  a  case  from  Ehode  Island,*  arising  from  the  organization 
of  opposing  governments  in  that  State.  And  we  think  that  the 
principle  sanctioned  by  it  may  be  applied,  with  even  more  pro- 
priety, to  the  case  of  a  State  deprived  of  all  rightful  government, 
by  revolutionary  violence;  though  necessarily  limited  to  cases 
where  the  rightful  government  is  thus  subverted,  or  in  imminent 
danger  of  being  overthrown  by  an  opposing  government,  set  up 
by  force  within  the  State. 

The  action  of  the  President  must,  therefore,  be  considered  as 
provisional,  and,  in  that  light,  it  seems  to  have  been  regarded  by 
Congress.  It  was  taken  after  the  term  of  the  38th  Congress  had 
expired.  The  39th  Congress,  which  assembled  in  December,  1865, 
followed  by  the  40th  Congress,  which  met  in  March,  1867,  pro- 
ceeded, after  long  deliberation,  to  adopt  various  measures  for  reor- 
ganization and  restoration.  These  measures  were  embodied  in 
proposed  amendments  to  the  Constitution,  and  in  the  acts  known 
as  the  Eeconstruction  Acts,  w^hich  have  been  so  far  carried  into 
effect,  that  a  majority  of  the  States  which  were  engaged  in  the  re- 
bellion have  been  restored  to  their  constitutional  relations,  under 
forms  of  government,  adjudged  to  be  republican  by  Congress, 

*  Luther  v.  Borden,  7  Howard,  42. 


560  CASES    ON    CONSTITUTIONAL    LAW. 

through  the  admission  of  their  "Senators  and  Representatives  into 
the  councils  of  the  Union." 

Nothing  in  the  case  before  us  requires  the  court  to  pronounce 
Judgment  upon  the  constitutionality  of  any  particular  provision  of 
these  acts. 

But  it  is  important  to  observe  that  these  acts  themselves  show 
that  the  governments,  which  had  been  established  and  had  been 
in  actual  operation  under  executive  direction,  were  recognized  by 
Congress  as  provisional,  as  existing,  and  as  capable  of  continuance. 

By  the  act  of  March  2,  1867,^  the  first  of  the  series,  these  gov- 
ernments were,  indeed,  pronounced  illegal  and  were  subjected  to 
military  control,  and  were  declared  to  be  provisional  only;  and  by 
the  supplementary  act  of  July  19,  1867,  the  third  of  the  series,  it 
was  further  declared  that  it  was  the  true  intent  and  meaning  of 
the  act  of  March  2,  that  the  governments  then  existing  were  not 
legal  State  governments,  and  if  continued,  were  to  be  continued 
subject  to  the  military  commanders  of  the  respective  districts  and 
to  the  paramount  authority  of  Congress.  We  do  not  inquire  here 
into  the  constitutionality  of  this  legislation  so  far  as  it  relates  to 
military  authority,  or  to  the  paramount  authority  of  Congress.  It 
suffices  to  say,  that  the  terms  of  the  acts  necessarily  imply  recog- 
nition of  actually  existing  governments;  and  that  in  point  of  fact, 
the  governments  thus  recognized,  in  some  important  respects,  still 
exist. 

What  has  thus  been  said  generally  describes,  with  sufficient  ac- 
curacy, the  situation  of  Texas.  A  provisional  governor  of  the  State 
was  appointed  by  the  President  in  1865;  in  1866  a  governor  was 
elected  by  the  people  under  the  constitution  of  that  year;  at  a 
subsequent  date  a  governor  was  appointed  by  the  commander  of  the 
district.  Each  of  the  three  exercised  executive  functions  and  actu- 
ally represented  the  State  in  the  executive  department. 

In  the  case  before  us  each  has  given  his  sanction  to  the  prosecu- 
tion of  the  suit,  and  we  find  no  difficulty,  without  investigating  the 
legal  title  of  either  to  the  executive  office,  in  holding  that  the 
sanction  thus  given  sufficiently  warranted  the  action  of  the  solicitor 
and  counsel  in  behalf  of  the  State.  The  necessary  conclusion  is  that 
the  suit  was  instituted  and  is  prosecuted  by  competent  authority. 

The  question  of  jurisdiction  being  thus  disposed  of,  we  proceed 
to  the  consideration  of  the  merits  as  presented  by  the  pleadings 
and  the  evidence.     .     .     . 

On  the  whole  case,  therefore^  our  conclusion  is  that  the  State  of 

5  14  Stats,  at  Large,  428. 


TEXAS  V.  WHITE.  561 

Texas  is  entitled  to  the  relief  sought  by  her  bill,  and  a  decree  must 
be  made  accordingly. 

Mk.  Justice  Geier  dissenting.  I  regret  that  I  am  compelled  to 
dissent  from  the  opinion  of  the  majority  of  the  court  on  all  the 
points  raised  and  to  be  decided  in  this  case. 

The  first  question  in  order  is  the  jurisdiction  of  the  court  to 
entertain  this  bill  in  behalf  of  the  State  of  Texas. 

The  original  jurisdiction  of  this  court  can  be  invoked  only  by 
one  of  the  United  States.  The  Territories  have  no  such  right  con- 
ferred on  them  by  the  Constitution,  nor  have  the  Indian  tribes  who 
are  under  the  protection  of  the  military  authorities  of  the  gov- 
ernment. 

Is  Texas  one  of  these  United  States?  Or  was  she  such  at  the 
time  this  bill  was  filed,  or  since? 

This  is  to  be  decided  as  a  political  fact,  not  as  a  legal  fiction. 
This  court  is  bound  to  know  and  notice  the  public  history  of  the 
nation. 

If  I  regard  the  truth  of  history  for  the  last  eight  years,  I  cannot 
discover  the  State  of  Texas  as  one  of  these  United  States.  I  do 
not  think  it  necessary  to  notice  any  of  the  very  astute  arguments 
which  have  been  advanced  by  the  learned  counsel  in  this  case,  to 
find  the  definition  of  a  State,  when  we  have  the  subject  treated  in 
a  clear  and  common-sense  manner  by  Chief  Justice  Marshall,  in 
the  case  of  Hepburn  &  Dundas  v.  Ellzey.^  As  the  case  is  short,  I 
hope  to  be  excused  for  a  full  report  of  it,  as  stated  and  decided  by 
the  court.    He  says: 

"The  question  is,  whether  the  plaintiffs,  as  residents  of  the  Dis- 
trict of  Columbia,  can  maintain  an  action  in  the  Circuit  Court  of 
the  United  States  for  the  District  of  Virginia.  This  depends  on 
the  act  of  Congress  describing  the  jurisdiction  of  that  court.  The 
act  gives  jurisdiction  to  the  Circuit  Courts  in  cases  between  a  citi- 
zen of  the  State  in  which  the  suit  is  brought,  and  a  citizen  of  ail- 
other  State.  To  support  the  jurisdiction  in  this  case,  it  must  appear 
that  Columbia  is  a  State.  On  the  part  of  the  plaintiff,  it  has  been 
urged  that  Columbia  is  a  distinct  political  society,  and  is,  therefore, 
a  'State'  according  to  the  definition  of  writers  on  general  law. 
This  is  true;  but  as  the  act  of  Congress  obviously  uses  the  word 
'State'  in  reference  to  that  term  as  used  in  the  Constitution,  it  be- 
comes necessary  to  inquire  whether  Columbia  is  a  State  in  the 
sense  of  that  instrument.  The  result  of  that  examination  is  a  con- 
viction that  the  members  of  the  American  Confederacy  only  are  the 

W  6  2  Cranch,  452. 


562  CASES    ON    CONSTITUTIONAL    LAW. 

States  contemplated  in  the  Constitution.  The  House  of  Repre- 
sentatives is  to  be  composed  of  members  chosen  by  the  people  of 
the  several  States,  and  each  State  shall  have  at  least  one  repre- 
sentative, 'The  Senate  of  the  United  States  shall  be  composed  of 
two  senators  from  each  State.'  Each  State  shall  appoint,  for  the 
election  of  the  executive,  a  number  of  electors  equal  to  its  whole 
number  of  senators  and  representatives.  These  clauses  show  that 
the  word  'State'  is  used  in  the  Constitution  as  designating  a  mem- 
ber of  the  Union,  and  excludes  from  the  term  the  signification 
attached  to  it  by  writers  on  the  law  of  nations." 

Now  we  have  here  a  clear  and  well-defined  test  by  which  we 
may  arrive  at  a  conclusion  with  regard  to  the  questions  of  fact 
now  to  be  decided. 

Is  Texas  a  State,  now  represented  by  members  chosen  by  the 
people  of  that  State  and  received  on  the  floor  of  Congress?  Has  she 
two  senators  to  represent  her  as  a  State  in  the  Senate  of  the  United 
States?  Has  her  voice  been  heard  in  the  late  election  of  President? 
Is  she  not  now  held  and  governed  as  a  conquered  province  by  mili- 
tary force?  The  act  of  Congress  of  March  2d,  1867,  declares  Texas 
to  be  a  "rebel  State,"  and  provides  for  its  government  until  a  legal 
and  republican  State  government  could  be  legally  established.  It 
constituted  Louisiana  and  Texas  the  fifth  military  district,  and 
made  it  subject,  not  to  the  civil  authority,  but  to  the  "military 
authorities  of  the  United  States." 

It  is  true  that  no  organized  rebellion  now  exists  there,  and  the 
courts  of  the  United  States  now  exercise  jurisdiction  over  the  peo- 
ple of  that  province.  But  this  is  no  test  of  the  State's  being  in 
the  Union;  Dakota  is  no  State,  and  yet  the  United  States  admin- 
ister justice  there  as  they  do  in  Texas.  The  Indian  tribes,  who  are 
governed  by  military  force,  cannot  claim  to  be  States  of  the  Union. 
Wherein  does  the  condition  of  Texas  differ  from  theirs? 

Now,  by  assuming  or  admitting  as  a  fact  the  present  status  of 
Texas  as  a  State  not  in  the  Union  politically,  I  beg  leave  to  protest 
against  any  charge  of  inconsistency  as  to  judicial  opinions  hereto- 
fore expressed  as  a  member  of  this  court,  or  silently  assented  to.  I 
do  not  consider  myself  bound  to  express  any  opinion  judicially  as 
to  the  constitutional  right  of  Texas  to  exercise  the  rights  and  privi- 
leges of  a  State  of  this  Union,  or  the  power  of  Congress  to  govern 
her  as  a  conquered  province,  to  subject  her  to  military  domination, 
and  keep  her  in  pupilage.  I  can  only  submit  to  the  fact  as  de- 
cided by  the  political  position  of  the  government;  and  I  am  not 
disposed  to  join  in  any  essay  to  prove  Texas  to  be  a  State  of  the 
Union,  when  Congress  have  decided  that  she  is  not.    It  is  a  question 


TARBLE'S    CASE.  563 

of  fact,  I  repeat,  and  of  fact  only.  Politically,  Texas  is  not  a  State 
in  this  Union.  Whether  rightfully  out  of  it  or  not  is  a  question 
not  before  the  court.     .     ,     . 

Mr.  Justice  Swayne:  I  concur  with  my  brother  Grier  as  to 
the  incapacity  of  the  State  of  Texas,  in  her  present  condition,  to 
maintain  an  original  suit  in  this  court.  The  question,  in  my  judg- 
ment, is  one  in  relation  to  which  this  court  is  bound  by  the  action 
pf  the  legislative  department  of  the  government. 

Upon  the  merits  of  the  case,  I  agree  with  the*  majority  of  my 
brethren. 

I  am  authorized  to  say  that  my  brother  Miller  unites  with  me 
in  these  views. 


TAEBLE'S   CASE. 
13  Wallace,  397.    Decided  1871. 
Error  to  the  Supreme  Court  of  Wisconsin. 

This  was  a  proceeding  on  habeas  corpus  for  the  discharge  of  one 
Edward  Tarble,  held  in  the  custody  of  a  recruiting  officer  of  the 
United  States  as  an  enlisted  soldier,  on  the  alleged  ground  that  he 
was  a  minor,  under  the  age  of  eighteen  years  at  the  time  of  his 
enlistment,  and  that  he  enlisted  without  the  consent  of  his  father. 

The  writ  was  issued  on  the  10th  of  August,  1869,  by  a  court  com- 
missioner of  Dane  County,  Wisconsin,  an  officer  authorized  by  the 
laws  of  that  State  to  issue  the  writ  of  habeas  corpus  upon  the  peti- 
tion of  parties  imprisoned  or  restrained  of  their  liberty,  or  of  per- 
sons on  their  behalf.  It  was  issued  in  this  case  upon  the  petition 
of  the  father  of  Tarble,  in  which  he  alleged  that  his  son,  who  had 
enlisted  under  the  name  of  Frank  Brown,  was  confined  and  re- 
strained of  his  liberty  by  Lieutenant  Stone,  of  the  United  States 
army,  in  the  city  of  Madison,  in  that  State  and  county;  that  the 
cause  of  his  confinement  and  restraint  was  that  he  had,  on  the  20th 
of  the  preceding  July,  enlisted,  and  been  mustered  into  the  mili- 
tary service  of  the  United  States;  that  he  was  under  the  age  of 
eighteen  years  at  the  time  of  such  enlistment;  that  the  same  was 
made  without  the  knowledge,  consent,  or  approval  of  the  peti- 
tioner; and  was,  therefore,  as  the  petitioner  was  advised  and  be- 
lieved, illegal;  and  that  the  petitioner  was  lawfully  entitled  to  the 
custody,  care,  and  services  of  his  son.     .     .     . 


564  CASES    ON    CONSTITUTIONAL    LAW. 

[The  commissioner  held  that  the  prisoner  was  illegally  detained 
by  Lieutenant  Stone,  and  ordered  his  discharge.  Afterwards  Lieu- 
tenant Stone  had  the  proceedings  taken  to  the  Supreme  Court  of 
Wisconsin,  where  the  order  of  the  commissioner  discharging  the 
prisoner  was  affirmed.  That  judgment  was  then  brought  before 
the  United  States  Supreme  Court  on  a  writ  of  error  prosecuted  by 
the  United  States.] 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court,  as  follows: — 

The  important  question  is  presented  by  this  case,  whether  a 
State  court  commissioner  has  jurisdiction,  upon  habeas  corpus,  to 
inquire  into  the  validity  of  the  enlistment  of  soldiers  into  the  mili- 
tary service  of  the  United  States,  and  to  discharge  them  from  such 
service  when,  in  his  judgment,  their  enlistment  has  not  been  made 
in  conformity  with  the  laws  of  the  United  States,  The  question 
presented  may  be  more  generally  stated  thus:  Whether  any  judicial 
officer  of  a  State  has  jurisdiction  to  issue  a  writ  of  habeas  corpus, 
or  to  continue  proceedings  under  the  writ  when  issued,  for  the  dis- 
charge of  a  person  held  under  the  au-thority,  or  claim  and  color  of 
the  authority,  of  the  L^nited  States,  by  an  officer  of  that  govern- 
ment. For  it  is  evident,  if  such  jurisdiction  may  be  exercised  by 
any  judicial  officer  of  a  State,  it  may  be  exercised  by  the  court 
commissioner  within  the  county  for  which  he  is  appointed;  and  if 
it  may  be  exercised  with  reference  to  soldiers  detained  in  the  mili- 
tary service  of  the  United  States,  whose  enlistment  is  alleged  to 
have  been  illegally  made,  it  may  be  exercised  with  reference  to  per- 
sons employed  in  any  other  department  of  the  public  service  when 
their  illegal  detention  is  asserted.  It  may  be  exercised  in  all  cases 
where  parties  are  held  under  the  authority  of  the  United  States, 
whenever  the  invalidity  of  the  exercise  of  that  authority  is  affirmed. 
The  jurisdiction,  if  it  exist  at  all,  can  only  be  limited  in  its  appli- 
cation by  the  legislative  power  of  the  State,  It  may  even  reach 
to  parties  imprisoned  under  sentence  of  the  National  courts,  after 
regular  indictment,  trial,  and  conviction,  for  offenses  against  the 
laws  of  the  United  States.  As  we  read  the  opinion  of  the  Supreme 
Court  of  Wisconsin  in  this  case,  this  is  the  claim  of  authority  as- 
serted by  that  tribunal  for  itself  and  for  the  judicial  officers  of  that 
State.  It  does,  indeed,  disclaim  any  right  of  either  to  interfere 
with  parties  in  custody,  under  judicial  sentence,  when  the  National 
court  pronouncing  sentence  had  jurisdiction  to  try  and  punish  the 
offenders,  but  it  asserts,  at  the  same  time,  for  itself  and  for  each  of 


TARBLE'S    CASE.  565 

those  officers,  the  right  to  determine,  upon  habeas  corpus,  in  all 
cases,  whether  that  court  ever  had  such  jurisdiction.     .     .     . 

It  is  evident,  as  said  by  this  court  when  the  case  of  Booth  was 
finally  brought  before  it,  if  the  power  asserted  by  that  State  court 
ever  existed,  no  offense  against  the  laws  of  the  United  States  could 
be  punished  by  their  own  tribunals,  without  the  permission  and 
according  to  the  judgment  of  the  courts  of  the  State  in  which  the 
parties  happen  to  be  imprisoned;  that  if  that  power  existed  in  that 
State  court,  it  belonged  equally  to  every  other  State  court  in  the 
Union  where  a  prisoner  was  within  its  territorial  limits;  and,  as 
the  different  State  courts  could  not  always  agree,  it  would  often 
happen  that  an  act,  which  was  admitted  to  be  an  offense  and  justly 
punishable  in  one  State,  would  be  regarded  as  innocent  and  even 
praiseworthy  in  another,  and  no  one  could  suppose  that  a  govern- 
ment, which  had  hitherto  lasted  for  seventy  years,  "enforcing  its 
laws  by  its  own  tribunals,  and  preserving  the  union  of  the  States, 
could  have  lasted  a  single  year,  or  fulfilled  the  trusts  committed 
to  it,  if  offenses  against  its  laws  could  not  have  been  punished  with- 
out the  consent  of  the  State  in  which  the  culprit  was  found." 
.  .  .  [Here  follows  an  extended  discussion  of  Ableman  v.  Booth 
and  The  United  States  v.  Booth,  21  Howard,  506.] 

It  is  in  the  consideration  of  this  distinct  and  independent  char- 
acter of  the  government  of  the  United  States,  from  that  of  the 
government  of  the  several  States,  that  the  solution  of  the  question 
presented  in  this  case,  and  in  similar  cases,  must  be  found.  There 
are  within  the  territorial  limits  of  each  State  two  governments,  re- 
stricted in  their  spheres  of  action,  but  independent  of  each  other, 
and  supreme  within  their  respective  spheres.  Each  has  its  sep- 
arate departments;  each  has  its  distinct  laws,  and  each  has  its  own 
tribunals  for  their  enforcement.  Neither  government  can  intrude 
within  the  jurisdiction,  or  authorize  any  interference  therein  by 
its  judicial  officers  with  the  action  of  the  other.  The  two  gov- 
ernments in  each  State  stand  in  their  respective  spheres  of  action 
in  the  same  independent  relation  to  each  other,  except  in  one  par- 
ticular, that  they  would  if  their  authority  embraced  distinct  ter- 
ritories. That  particular  consists  in  the  supremacy  of  the  authority 
of  the  United  States  when  any  confiict  arises  between  the  two 
governments.  The  Constitution  and  the  laws  passed  in  pursuance 
of  it,  are  declared  by  the  Constitution  itself  to  be  the  supreme  law 
of  the  land,  and  the  judges  of  every  State  are  bound  thereby,  "any- 
thing in  the  constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding." Whenever,  therefore,  any  conflict  arises  between 
the  enactments  of  the  two  sovereignties,  or  in  the  enforcement  of 


566  CASES    ON    CONSTITUTIONAL    LAW. 

their  asserted  authorities,  those  of  the  National  government  must 
have  supremacy  until  the  validity  of  the  different  enactments  and 
authorities  can  be  finally  determined  by  the  tribunals  of  the  United 
States.  This  temporary  supremacy  until  judicial  decision  by  the 
National  tribunals,  and  the  ultimate  determination  of  the  conflict 
by  such  decision,  are  essential  to  the  preservation  of  order  and 
peace,  and  the  avoidance  of  forcible  collision  between  the  two 
.governments.  "The  Constitution,"  as  said  by  Mr.  Chief  Justice 
Taney,  "was  not  framed  merely  to  guard  the  States  against  danger 
from  abroad,  but  chiefly  to  secure  union  and  harmony  at  home; 
and  to  accomplish  this  end  it  was  deemed  necessary,  when  the 
Constitution  was  framed,  that  many  of  the  rights  of  sovereignty 
Avhich  the  States  then  possessed  should  be  ceded  to  the  General 
government;  and  that  in  the  sphere  of  action  assigned  to  it,  it 
should  be  supreme  and  strong  enough  to  execute  its  own  laws  by 
its  own  tribunals,  without  interruption  from  a  State,  or  from  State 
authorities."  And  the  judicial  power  conferred  extends  to  all 
cases  arising  under  the  Constitution,  and  thus  embraces  every  legis- 
lative act  of  Congress,  whether  passed  in  pursuance  of  it,  or  in 
disregard  of  its  provisions.  The  Constitution  is  under  the  view 
of  the  tribunals  of  the  United  States  when  any  act  of  Congress  is 
brought  before  them  for  consideration. 

Such  being  the  distinct  and  independent  character  of  the  two 
governments,  within  their  respective  spheres  of  action,  it  follows 
that  neither  can  intrude  with  its  judicial  process  into  the  domain 
of  the  other,  except  so  far  as  such  intrusion  may  be  necessary  on 
the  part  of  the  National  government  to  preserve  its  rightful  su- 
premacy in  cases  of  conflict  of  authority.  In  their  laws,  and  mode 
of  enforcement,  neither  is  responsible  to  the  other.  How  their 
respective  laws  shall  be  enacted;  how  they  shall  be  carried  into 
execution;  and  in  what  tribunals,  or  by  what  officers;  and  how 
much  discretion,  or  whether  any  at  all  shall  be  vested  in  their 
officers,  are  matters  subject  to  their  own  control,  and  in  the  regula- 
tion of  which  neither  can  interfere  with  the  other. 

Now,  among  the  powers  assigned  to  the  National  government, 
is  the  power  "to  raise  and  support  armies,"  and  the  power  "to 
provide  for  the  government  and  regulation  of  the  land  and  naval 
forces."  The  execution  of  these  powers  falls  within  the  line  of  its 
duties;  and  its  control  over  the  subject  is  plenary  and  exclusive. 
It  can  determine,  without  question  from  any  State  authority,  how 
the  armies  shall  be  raised,  whether  by  voluntary  enlistment  or 
forced  draft,  the  age  at  which  the  soldier  shall  be  received,  and 
the  period  for  which  he  shall  be  taken,  the  compensation  he  shall 


TARBLE'S    CASE.  567 

be  allowed,  and  the  service  to  which  he  shall  be  assigned.  And  it 
can  provide  the  rules  for  the  government  and  regulation  of  the 
forces  after  they  are  raise'.d,  define  what  shall  constitute  military 
offenses,  and  prescribe  their  punishment.  No  interference  with 
the  execution  of  this  power  of  the  National  government  in  the 
formation,  organization,  and  government  of  its  armies  by  any  State 
officials  could  be  permitted  without  greatly  impairing  the  effi- 
ciency, if  it  did  not  utterly  destroy,  this  branch  of  the  public  ser- 
vice. Probably  in  every  county  and  city  in  the  several  States  there 
are  one  or  more  officers  authorized  by  law  to  issue  writs  of  habeas 
corpus  on  behalf  of  persons  alleged  to  be  illegally  restrained  of 
their  liberty;  and  if  soldiers  could  be  taken  from  the  army  of  the 
United  States,  and  the  validity  of  their  enlistment  inquired  into  by 
any  one  of  these  officers,  such  proceeding  could  be  taken  by  all  of 
them,  and  no  movement  could  be  made  by  the  National  troops 
without  their  commanders  being  subjected  to  constant  annoyance 
and  embarrassment  from  this  source.  The  experience  of  the  late 
rebellion  has  shown  us,  that,  in  times  of  great  popular  excitement, 
there  may  be  found  in  every  State  large  numbers  ready  and  anxious 
to  embarrass  the  operations  of  the  government,  and  easily  per- 
suaded to  believe  every  step  taken  for  the  enforcement  of  its 
authority  illegal  and  void.  Power  to  issue  writs  of  habeas  corpus 
for  the  discharge  of  soldiers  in  the  military  service,  in  the  hands 
of  parties  thus  disposed,  might  be  used,  and  often  would  be  used, 
to  the  great  detriment  of  the  public  service.  In  many  exigencies 
the  measures  of  the  National  government  might  in  this  way  be 
entirely  bereft  of  their  efficacy  and  value.  An  appeal  in  such  cases 
to  this  court,  to  correct  the  erroneous  action  of  these  officers, 
would  afford  no  adequate  remedy.  Proceedings  on  habeas  corpus 
are  summary,  and  the  delay  incident  to  bringing  the  decision  of  a 
State  officer,  through  the  highest  tribunal  of  the  State,  to  this 
court  for  review  would  necessarily  occupy  years,  and  in  the  mean- 
time, where  the  soldier  was  discharged,  the  mischief  would  be  ac- 
complished. It  is  manifest  that  the  powers  of  the  National  govern- 
ment could  not  be  exercised  with  energy  and  efficiency  at  all  times, 
if  its  acts  could  be  interfered  with  and  controlled  for  any  period  by 
officers  or  tribunals  of  another  sovereignty. 

It  is  true  similar  embarrassment  might  sometimes  be  occasioned, 
though  in  a  less  degree,  by  the  exercise  of  the  authority  to  issue 
the  writ  possessed  by  Judicial  officers  of  the  United  States,  but  the 
ability  to  provide  a  speedy  remedy  for  any  inconvenience  following 
from  this  source  would  always  exist  with  the  National  legislature. 

State  judges  and  State  courts,  authorized  by  laws  of  their  States 


568  CASES    ON    CONSTITUTIONAL    LAW. 

to  issue  writs  of  habeas  corpus,  have  undoubtedly  a  right  to  issue 
the  writ  in  any  case  where  a  party  is  alleged  to  be  illegally  confined 
within  their  limits,  unless  it  appear  upon  his  application  that  he  is 
confined  under  the  authority,  or  claim  and  color  of  the  authority, 
of  the  United  States,  by  an  officer  of  that  government.  If  such 
fact  appear  upon  the  application  the  writ  should  be  refused.  If 
it  do  not  appear,  the  judge  or  court  issuing  the  WTit  has  a  right 
to  inquire  into  the  cause  of  imprisonment  and  ascertain  by  what 
authority  the  person  is  held  within  the  limits  of  the  State; 
and  it  is  the  duty  of  the  marshal,  or  other  officer  having  the 
custody  of  the  prisoner,  to  give,  by  a  proper  return,  information 
in  this  respect.  His  return  should  be  sufficient,  in  its  detail  of 
facts,  to  show  distinctly  that  the  imprisonment  is  under  the  au- 
thority, or  claim  and  color  of  the  authority,  of  the  United  States, 
and  to  exclude  the  suspicion  of  imposition  or  oppression  on  his 
part.  And  the  process  or  orders,  under  which  the  prisoner  is  held, 
should  be  produced  with  the  return  and  submitted  to  inspection, 
in  order  that  the  court  or  judge  issuing  the  writ  may  see  that  the 
prisoner  is  held  by  the  officer,  in  good  faith,  under  the  authority 
OT  claim  and  color  of  the  authority,  of  the  United  States,  and  not 
under  the  mere  pretence  of  having  such  authority. 

This  right  to  inquire  by  process  of  habeas  corpus,  and  the  duty 
of  the  officer  to  make  a  return,  "grows  necessarily,"  says  Mr.  Chief 
Justice  Taney,  "out  of  the  complex  character  of  our  government 
and  the  existence  of  two  distinct  and  separate  sovereignties  within 
the  same  territorial  space,  each  of  them  restricted  in  its  power,  and 
each  within  its  sphere  of  action,  prescribed  by  the  Constitution  of 
the  United  States,  independent  of  the  other.  But,  after  the  re- 
turn is  made,  and  the  State  judge  or  court  judicially  apprised  that 
the  party  is  in  custody  under  the  authority  of  the  United  States, 
they  can  proceed  no  further.  They  then  know  that  the  prisoner 
is  within  the  dominion  and  jurisdiction  of  another  government, 
and  that  neither  the  writ  of  habeas  corpus  nor  any  other  process 
issued  under  State  authority  can  pass  over  the  line  of  division  be- 
tween the  two  sovereignties.  He  is  then  within  the  dominion  and  * 
exclusive  jurisdiction  of  the  United  States.  If  he  has  committed 
an  offense  against  their  laws,  their  tribunals  alone  can  punish  him. 
If  he  is  wrongfully  imprisoned,  their  judicial  tribunals  can  release 
him  and  afford  him  redress." 

Some  attempt  has  been  made  in  adjudications,  to  which  our  at- 
tention has  been  called,  to  limit  the  decision  of  this  court  in  Able- 
man  V.  Booth,  and  The  United  States  v.  Booth,  to  cases  where  a 
prisoner  is  held  in  custody  under  undisputed  lawful  authority  of 


TARBLE'S    CASE.  5G9 

the  United  States,  as  distinguished  from  his  imprisonment  under 
claim  and  color  of  such  authority.  But  it  is  evident  that  the  deci- 
sion does  not  admit  of  any  such  limitation.  It  would  have  been 
unnecessary  to  enforce,  by  any  extended  reasoning,  such  as  the 
Chief  Justice  uses,  the  position  that  when  it  appeared  to  the  judge 
or  officer  issuing  the  writ,  that  the  prisoner  was  held  under  undis- 
puted lawful  authority,  he  should  proceed  no  further.  No  Federal 
judge  even  could,  in  such  case,  release  the  party  from  imprison- 
ment, except  upon  bail  when  that  was  allowable.  The  detention 
being  by  admitted  lawful  authority,  no  judge  could  set  the  pris- 
oner at  liberty,  except  in  that  way,  at  any  stage  of  the  proceeding. 
All  that  is  meant  by  the  language  used  is,  that  the  State  judge  or 
State  court  should  proceed  no  further  when  it  appears,  from  the 
application  of  the  party,  or  the  return  made,  that  the  prisoner  is 
held  by  an  officer  of  the  United  States  under  what,  in  truth,  pur- 
ports to  be  the  authority  of  the  United  States;  that  is,  an  author- 
ity, the  validity  of  which  is  to  be  determined  by  the  Consitution 
and  laws  of  the  United  States.  If  a  party  thus  held  be  illegally 
imprisoned  it  is  for  the  courts  or  judicial  officers  of  the  United 
States,  and  those  courts  or  officers  alone,  to  grant  him  release. 

This  limitation  upon  the  power  of  State  tribunals  and  State 
officers  furnishes  no  just  ground  to  apprehend  that  the  liberty  of 
the  citizen  will  thereby  be  endangered.  The  United  States  are  as 
much  interested  in  protecting  the  citizen  from  illegal  restraint 
under  their  authority,  as  the  several  States  are  to  protect  him  from 
the  like  restraint  under  their  authority,  and  are  no  more  likely  to 
tolerate  any  oppression.  Their  courts  and  Judicial  officers  are 
clothed  with  the  power  to  issue  the  writ  of  habeas  corpus  in  all 
cases,  where  .a  party  is  illegally  restrained  of  his  liberty  by  an  officer 
of  the  United  States,  whether  such  illegality  consist  in  the  char- 
acter of  the  process,  the  authority  of  the  officer,  or  the  invalidity 
of  the  law  under  which  he  is  held.  x\nd  there  is  no  just  reason 
to  believe  that  they  will  exhibit  any  hesitation  to  exert  their  power, 
when  it  is  properly  invoked.  Certainly  there  can  be  no  ground  for 
supposing  that  their  action  will  be  less  prompt  and  efficient  in  such 
cases  than  would  be  that  of  State  tribunals  and  State  officers.^ 

It  follows,  from  the  views  we  have  expressed,  that  the  court 
commissioner  of  Dane  County  was  without  jurisdiction  to  issue 
the  writ  of  habeas  corpus  for  the  discharge  of  the  prisoner  in  this 
case,  it  appearing,  upon  the  application  presented  to  him  for  the 
writ,  that  the  prisoner  was  held  by  an  officer  of  the  United  States, 

1  In  the  matter  of  Severy,  4  Clifford.  In  the  matter  of  Keeler,  Hemp- 
stead, 30G. 


570  CASES    ON    CONSTITUTIONAL    LAW. 

under  claim  and  color  of  the  authority  of  the  United  States,  as  an 
enlisted  soldier  mustered  into  the  military  service  of  the  Xational 
government;  and  the  same  information  was  imparted  to  the  com- 
missioner hy  the  return  of  the  officer.  The  commissioner  was,  both 
by  the  application  for  the  writ  and  the  return  to  it,  apprised  that 
the  prisoner  was  within  the  dominion  and  jurisdiction  of  another 
government,  and  that  no  writ  of  habeas  corpus  issued  by  him  could 
pass  over  the  line  which  divided  the  two  sovereignties. 

The  conclusion  we  have  reached  renders  it  unnecessary  to  con- 
sider how  far  the  declaration  of  the  prisoner  as  to  his  age,  in  the 
oath  of  enlistment,  is  to  be  deemed  conclusive  evidence  on  that 
point  on  the  return  to  the  writ.  Judgment  reversed. 

The  Chief  Justice,  dissenting.  I  cannot  concur  in  the  opinion 
just  read.  I  have  no  doubt  of  the  right  of  a  State  court  to  in- 
quire into  the  jurisdiction  of  a  Federal  court  upon  habeas  corpus, 
and  to  discharge  when  satisfied  that  the  petitioner  for  the  writ  is 
restrained  of  liberty  by  the  sentence  of  a  court  without  jurisdiction. 
If  it  errs  in  deciding  the  question  of  jurisdiction,  the  error  must 
be  corrected  in  the  mode  prescribed  by  the  25th  section  of  the 
Judiciary  Act;  not  by  denial  of  the  right  to  make  inquiry. 

I  have  still  less  doubt,  if  possible,  that  a  writ  of  habeas  corpus 
may  issue  from  a  State  court  to  inquire  into  the  validity  of  im- 
prisonment or  detention,  without  the  sentence  of  any  court  what- 
ever, by  an  officer  of  the  United  States.  The  State  court  may  err; 
and  if  it  does,  the  error  may  be  corrected  here.  The  mode  has  been 
prescribed  and  should  be  followed. 

To  deny  the  right  of  State  courts  to  issue  the  writ,  or,  what 
amounts  to  the  same  thing,  to  concede  the  right  to  issue  and  to 
deny  the  right  to  adjudicate,  is  to  deny  the  right  to  protect  the 
citizen  by  habeas  corpus  against  arbitrary  imprisonment  in  a  large 
number  of  cases;  and,  I  am  thoroughly  persuaded,  was  never 
within  the  contemplation  of  the  Convention  which  framed,  or  the 
people  who  adopted,  the  Constitution.  That  instrument  expressly 
declares  that  "the  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  case  of  rebellion  or  invasion,  the 
public  safety  may  require  it." 


EX  PARTE  SIEBOLD.  6'J'l 

Ex  Parte  SIEBOLD. 
100  U,  S.,  371.    Decided  1879. 

Petition  for  writ  of  habeas  corpus. 

The  facts  are  stated  in  the  opinion  of  the  court.     .     ... 

Mb.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  petitioners  in  this  case,  Albert  Siebold,  Walter  Tucker, 
Martin  C.  Burns,  Lewis  Coleman,  and  Henr}'  Bowers,  were  Judges 
of  election  at  different  voting  precincts  in  the  city  of  Baltimore, 
at  the  election  held  in  that  city,  and  in  the  State  of  Maryland,  on 
the  fifth  day  of  November,  1878,  at  which  representatives  to  the 
Forty-sixth  Congress  were  voted  for. 

At  the  November  Term  of  the  Circuit  Court  of  the  United  States 
for  the  District  of  Maryland,  an  indictment  against  each  of  the 
petitioners  was  found  in  said  court,  for  offenses  alleged  to  have 
been  committed  by  them  respectively  at  their  respective  precincts 
whilst  being  judges  of  election;  and  upon  which  indictments  they 
were  severally  tried,  convicted,  and  sentenced  by  said  court  to  fine 
and  imprisonment.  They  now  apply  to  this  court  for  a  writ  of 
habeas  corpus  to  be  relieved  from  imprisonment.     .     .     . 

These  indictments  were  framed  partly  under  Sect.  5515  and 
partly  under  Sect.  5522  of  the  Revised  Statutes  of  the  L'nited 
States;  and  the  principal  questions  raised  by  the  application  are, 
whether  those  sections,  and  certain  sections  of  the  title  of  the 
Eevised  Statutes  relating  to  the  elective  franchise,  which  they  are 
intended  to  enforce,  are  within  the  constitutional  power  of  Con- 
gress to  enact.  If  they  are  not,  then  it  is  contended  that  the  Cir- 
cuit Court  has  no  jurisdiction  of  the  cases,  and  that  the  convic- 
tions and  sentences  of  imprisonment  of  the  several  petitioners  were 
illegal  and  void.     .     .     . 

The  peculiarity  of  the  case  consists  in  the  concurrent  authority 
of  the  two  sovereignties,  State  and  National,  over  the  same  sub- 
ject-matter. This,  however,  is  not  entirely  without  a  parallel.  The 
regulation  of  foreign  and  interstate  commerce  is  conferred  by  the 
Constitution  upon  Congress.  It  is  not  expressly  taken  away  from 
the  States.  But  where  the  subject  matter  is  one  of  a  national  char- 
acter, or  one  that  requires  a  uniform  rule,  it  has  been  held  that 
the  power  of  Congress  is  exclusive.  On  the  contrary,  where  neither 
of  these  circumstances  exist,  it  has  been  held  that  State  regulations 
are  not  unconstitutional.  In  the  absence  of  congressional  regula- 
tion, which  would  be  of  paramount  authority  when  adopted,  they 


572  CASES    ON    CONSTITUTIONAL    LAW. 

are  valid  and  binding.  .  .  .  [Here  follows  a  discussion  of 
Cooley  V.  Board  of  Wardens  of  Port  of  Philadelphia,  12  How- 
ard, 299.] 

So  in  the  case  of  laws  for  regulating  the  elections  of  repre- 
sentatives to  Congress.  The  State  may  make  regulations  on  the 
subject;  Congress  may  make  regulations  on  the  same  subject,  or 
may  alter  or  add  to  those  already  made.  The  paramount  character 
of  those  made  by  Congress  has  the  effect  to  supersede  those  made 
by  the  State,  so  far  as  the  two  are  inconsistent,  and  no  farther. 
There  is  no  such  conflict  between  them  as  to  prevent  their  form- 
ing a  harmonious  system  perfectly  capable  of  being  administered 
and  carried  out  as  such. 

As  to  the  supposed  conflict  that  may  arise  between  the  officers 
appointed  by  the  State  and  national  governments  for  superintend- 
ing the  election,  no  more  insuperable  difficulty  need  arise  than  in 
•the  application  of  the  regulations  adopted  by  each  respectively. 
The  regulations  of  Congress  being  constitutionally  paramount,  the 
duties  imposed  thereby  upon  the  officers  of  the  United  States,  so 
far  as  they  have  respect  to  the  same  matters,  must  necessarily  be 
paramount  to  those  to  be  performed  by  the  officers  of  the  State. 
If  both  cannot  be  performed,  the  latter  are  pro  tanto  superseded 
and  cease  to  be  duties.  If  the  power  of  Congress  over  the  subject 
is  supervisory  and  paramount,  as  we  have  seen  it  to  be,  and  if 
officers  or  agents  are  created  for  carrying  out  its  regulations,  it 
follows  as  a  necessary  consequence  that  such  officers  and  agents 
must-  have  the  requisite  authority  to  act  without  obstruction  or 
interference  from  the  officers  of  the  State.  No  greater  subordina- 
tion, in  kind  or  degree,  exists  in  this  case  than  in  any  other.  It 
exists  to  the  same  extent  between  the  different  officers  appointed 
by  the  State,  when  the  State  alone  regulates  the  election.  One 
officer  cannot  interfere  with  the  duties  of  another,  or  obstruct  or 
hinder  him  in  the  performance  of  them.  Where  there  is  a  disposi- 
tion to  act  harmoniously,  there  is  no  danger  of  disturbance  be- 
tween those  who  have  different  duties  to  perform.  When  the 
rightful  authority  of  the  general  government  is  once  conceded  and 
acquiesced  in,  the  apprehended  difficulties  will  disappear.  Let  a 
spirit  of  national  as  well  as  local  patriotism  once  prevail,  let  un- 
founded jealousies  cease,  and  we  shall  hear  no  more  about  the 
impossibility  of  harmonious  action  between  the  national  and  State 
governments  in  a  matter  in  which  they  have  a  mutual  interest. 

As  to  the  supposed  incompatibility  of  independent  sanctions 
and  punishments  imposed  by  the  two  governments,  for  the  en- 
forcement of  the  duties  required  of  the  officers  of  election,  and  for 


EX  PARTE  SIEBOLD.  573 

their  protection  in  the  performance  of  those  duties,  the  same  con- 
siderations apply.  While  the  State  will  retain  the  power  of  en- 
forcing such  of  its  own  regulations  as  are  not  superseded  by  those 
adopted  by  Congress,  it  cannot  be  disputed  that  if  Congress  has 
power  to  make  regulations  it  must  have  the  power  to  enforce  them, 
not  only  by  punishing  the  delinquency  of  officers  appointed  by  the 
United  States,  but  by  restraining  and  punishing  those  who  attempt 
to  interfere  with  them  in  the  performance  of  their  duties;  and  if, 
as  we  have  shown,  Congress  may  revise  existing  regulations,  and 
add  to  or  alter  the  same  as  far  as  it  deems  expedient,  there  can  be 
as  little  question  that  it  may  impose  additional  penalties  for  the 
prevention  of  frauds  committed  by  the  State  officers  in  the  elec- 
tions, or  for  their  violation  of  any  duty  relating  thereto,  whether 
arising  from  the  common  law  or  from  any  other  law,  State  or  na- 
tional. Why  not  ?  Penalties  for  fraud  and  delinquency  are  part  of 
the  regulations  belonging  to  the  subject.  If  Congress,  by  its  power 
to  make  or  alter  the  regulations,  has  a  general  supervisory  power 
over  the  whole  subject,  what  is  there  to  preclude  it  from  imposing 
additional  sanctions  and  penalties  to  prevent  such  fraud  and  de- 
linquency? 

It  is  objected  that  Congress  has  no  power  to  enforce  State  laws 
or  to  punish  State  officers,  and  especially  has  no  power  to  punish 
them  for  violating  the  laws  of  their  own  State.  As  a  general  propo- 
sition, this  is  undoubtedly  true;  but  when,  in  the  performance  of 
their  functions.  State  officers  are  called  upon  to  fulfill  duties  which 
they  owe  to  the  United  States  as  well  as  to  the  State,  has .  the 
former  no  means  of  compelling  such  fulfilment?  Yet  that  is  the 
case  here.  It  is  the  duty  of  the  States  to  elect  representatives  to 
Congress.  The  due  and  fair  election  of  these  representatives  is 
of  vital  importance  to  the  United  States.  The  government  of  the 
United  States  is  no  less  concerned  in  the  transaction  than  the  State 
government  is.  It  certainly  is  not  bound  to  stand  by  as  a  passive 
spectator,  when  duties  are  violated  and  outrageous  frauds  are  com- 
mitted. It  is  directly  interested  in  the  faithful  performance,  by 
the  officers  of  election,  of  their  respective  duties.  Those  duties 
are  owed  as  well  to  the  United  States  as  to  the  State.  This  neces- 
sarily follows  from  the  mixed  character  of  the  transaction,  State 
and  national.  A  violation  of  duty  is  an  offense  against  the  United 
States,  for  which  the  offender  is  justly  amenable  to  that  govern- 
ment. No  official  position  can  shelter  him  from  this  responsibility. 
In  view  of  the  fact  that  Congress  has  plenary  and  paramount  juris- 
diction over  the  whole  subject,  it  seems  almost  absurd  to  say  that 
an  officer  who  receives  or  has  custody  of  the  ballots  given  for  a 


574  CASES    ON    CONSTITUTIONAL    LAW. 

representative  owes  no  duty  to  the  national  government  which 
Congress  can  enforce;  or  that  an  officer  who  stuffs  the  ballot-box 
cannot  be  made  amenable  to  the  United  States.  If  Congress  has 
not,  prior  to  the  passage  of  the  present  laws,  imposed  any  penalties 
to  prevent  and  punish  frauds  and  violations  of  duty  committed 
by  officers  of  election,  it  has  been  because  the  exigency  has  not 
been  deemed  sufficient  to  require  it,  and  not  because  Congress 
had  not  the  requisite  power. 

The  objection  that  the  laws  and  regulations,  the  violation  of 
which  is  made  punishable  by  the  acts  of  Congress,  are  State  laws, 
and  have  not  been  adopted  by  Congress,  is  no  sufficient  answer 
to  the  power  of  Congress  to  impose  punishment.  It  is  true  that 
Congress  has  not  deemed  it  necessary  to  interfere  with  the  duties 
of  the  ordinary  officers  of  election,  but  has  been  content  to  leave 
them  as  prescribed  by  State  laws.  It  has  only  created  additional 
sanctions  for  their  performance,  and  provided  means  of  supervision 
in  order  more  effectually  to  secure  such  performance.  The  im- 
position of  punishment  implies  a  prohibition  of  the  act  punished. 
The  State  laws  which  Congress  sees  no  occasion  to  alter,  but  which 
it  allows  to  stand,  are  in  effect  adopted  by  Congress.  It.  simply 
demands  their  fulfillment.  Content  to  leave  the  laws  as  they  are, 
it  is  not  content  with  the  means  provided  for  their  enforcement. 
It  provides  additional  means  for  that  purpose;  and  we  think  it  is 
entirely  within  its  constitutional  power  to  do  so.  It  is  simply  the 
exercise  of  the  power  to  make  additional  regulations. 

That  the  duties  devolved  on  the  officers  of  election  are  duties 
which  they  owe  to  the  United  States  as  well  as  to  the  State,  is 
further  evinced  by  the  fact  that  they  have  always  been  so  regarded 
by  the  House  of  Representatives  itself.  In  most  cases  of  contested 
elections,  the  conduct  of  these  officers  is  examined  and  scrutin- 
ized by  that  body  as  a  matter  of  right;  and  their  failure  to  per- 
form their  duties  is  often  made  the  ground  of  decision.  Their 
conduct  is  justly  regarded  as  subject  to  the  fullest  exposure;  and 
the  right  to  examine  them  personally,  and  to  inspect  all  their 
proceedings  and  papers,  has  always  been  maintained.  This  could 
not  be  done,  if  the  officers  were  amenable  only  to  the  supervision 
of  the  State  government  which  appointed  them. 

Another  objection  made  is,  that,  if  Congress  can  impose  penal- 
ties for  violation  of  State  laws,  the  officer  will  be  made  liable  to 
double  punishment  for  delinquency, — at  the  suit  of  the  State, 
and  at  tlie  suit  of  the  United  States.  But  the  answer  to  this  is, 
that  each  government  punishes  for  violation  of  duty  to  itself 
only.    "WTiere  a  person  owes  a  duty  to  two  sovereigns,  he  is  amen- 


EX  PARTE  SIEBOLD.  575 

able  to  both  for  its  performance;  and  either  may  call  him  to 
account.  Whether  punishment  inflicted  by  one  can  be  pleaded  in 
bar  to  a  charge  by  the  other  for  the  same  identical  act,  need  not 
now  be  decided;  although  considerable  discussion  bearing  upon  the 
subject  has  taken  place  in  this  court,  tending  to  the  conclusion 
that  such  a  plea  cannot  be  sustained. 

In  Reference  to  a  conviction  under  a  State  law  for  passing  coun- 
terfeit coin,  which  was  sought  to  be  reversed  on  the  ground  that 
Congress  had  jurisdiction  over  that  subject,  and  might  inflict 
punishment  for  the  same  offense,  Mr.  Justice  Daniel,  speaking  for 
the  court,  said:  "It  is  almost  certain  that,  in  the  benignant 
spirit  in  which  the  institutions  both  of  the  State  and  Federal 
systems  are  administered,  an  offender  who  should  have  suffered 
the  penalties  denounced  by  the  one  would  not  be  subjected  a  second 
time  to  punishment  by  the  other  for  acts  essentially  the  same, — 
unless,  indeed,  this  might  occur  in  instances  of  peculiar  enormity, 
or  where  the  public  safety  demanded  extraordinary  rigor.  But, 
were  a  contrary  course  of  policy  or  action  either  probable  or 
usual,  this  would  by  no  means  justify  the  conclusion  that  offenses 
falling  within  the  competency  of  different  authorities  to  restrain 
or  punish  them  would  not  properly  be  subjected  to  the  conse- 
quences which  those  authorities  might  ordain  and  affix  to  their 
perpetration."  Fox  v.  The  State  of  Ohio,  5  How.,  410.  The 
same  judge,  delivering  the  opinion  of  the  court  in  the  case  of 
United  States  v.  Marigold  (9  How,,  569)  where  a  conviction  was 
had  under  an  act  of  Congress  for  bringing  counterfeit  coin  into 
the  country,  said,  in  reference  to  Fox's  Case:  "With  the  view  of 
avoiding  conflict  between  the  State  and  Federal  jurisdictions, 
this  court,  in  the  case  of  Fox  v.  State  of  Ohio,  have  taken  care 
to  point  out  that  the  same  act  might,  as  to  its  character  and 
tendencies,  and  the  consequences  it  involved,  constitute  an  offense 
against  both  the  State  and  Federal  governments,  and  might  draw 
to  its  commission  the  penalties  denounced  by  either,  as  appro- 
priate to  its  character  in  reference  to  each.  We  hold  this  dis- 
tinction sound;"  and  the  conviction  was  sustained.  The  subject 
came  up  again  for  discussion  in  the  case  of  Moore  v.  State  of 
Illinois  (14  id.,  13),  in  which  the  plaintiff  in  error  had  been  con- 
victed under  a  State  law  for  harboring  and  secreting  a  negro 
slave,  which  was  contended  to  be  properly  an  offense  against  the 
United  States  under  the  fugitive-slave  law  of  1793,  and  not  an 
offense  against  the  State.  The  objection  of  double  punishment 
was  again  raised.  Mr.  Justice  Grier,  for  the  court,  said:  "Every 
citizen  of  the  United  States  is  also  a  citizen  of  a  State  or  a  Ter- 


576  CASES    ON    CONSTITUTIONAL    LAW. 

ritory.  He  may  be  said  to  owe  allegiance  to  two  sovereigns,  and 
may  be  liable  to  punishment  for  an  infraction  of  the  laws  of  either. 
The  same  act  may  be  an  offense  or  transgression  of  the  laws  of 
both."  Substantially  the  same  views  are  expressed  in  United  States 
V,  Cruikshank  (92  U.  S.,  542),  referring  to  these  cases;  and  we 
do  not  well  see  how  the  doctrine  they  contain  can  be  contro- 
verted. A  variety  of  instances  may  be  readily  suggested,  in  which 
it  would  be  necessary  or  proper  to  apply  it.  Suppose,  for  example, 
a  State  judge  having  power  under  the  naturalization  laws  to  admit 
aliens  to  citizenship  should  utter  false  certificates  of  naturaliza- 
tion, can  it  be  doubted  that  he  could  be  indicted  under  the  act 
of  Congress  providing  penalties  for  that  offense,  even  though  he 
might  also,  under  the  State  laws,  be  indictable  for  forgery,  as 
well  as  liable  to  impeachment  ?  So,  if  Congress,  as  it  might,  should 
pass  a  law  fixing  the  standard  of  weights  and  measures,  and  im- 
posing a  penalty  for  sealing  false  weights  and  false  measures, 
but  leaving  to  the  States  the  matter  of  inspecting  and  sealing 
those  used  by  the  people,  would  not  an  offender,  filling  the  office 
of  sealer  under  a  State  law,  be  amenable  to  the  United  States  as 
well  as  to  the  State? 

If  the  officers  of  election,  in  elections  for  representatives,  owe 
a  duty  to  the  United  States,  and  are  amenable  to  that  government 
as  well  as  to  the  State, — as  we  think  they  are, — then,  according 
to  the  cases  just  cited,  there  is  no  reason  why  each  should  not 
establish  sanctions  for  the  performance  of  the  duty  owed  to  itself, 
though  referring  to  the  same  act. 

To  maintain  the  contrary  proposition,  the  case  of  Common- 
wealth of  Kentucky  v.  Dennison  (24  How.,  66)  is  confidently  relied 
on  by  the  petitioners'  counsel.  But  there.  Congress  had  imposed 
a  duty  upon  the  governor  of  the  State  which  it  had  no  authority 
to  impose.  The  enforcement  of  the  clause  in  the  Constitution 
requiring  the  delivery  of  fugitives  from  service  was  held  to  belong 
to  the  government  of  the  United  States,  to  be  effected  by  its  own 
agents;  and  Congress  had  no  authority  to  require  the  governor 
of  a  State  to  execute  this  duty. 

We  have  thus  gone  over  the  principal  reasons  of  a  special  char- 
acter relied  on  by  the  petitioners  for  maintaining  the  general 
proposition  for  which  they  contend;  namely,  that  in  the  regula- 
tion of  elections  for  representatives  the  national  and  State  gov- 
ernments cannot  co-operate,  but  must  act  exclusively  of  each 
other;  so  that,  if  Congress  assumes  to  regulate  the  subject  at  all, 
it  must  assume  exclusive  control  of  the  whole  subject.  The  more 
general  reason  assigned,  to  wit,  that  the  nature  of  sovereignty 


EX  PARTE  SIEBOLD.  577 

is  such  as  to  preclude  the  joint  co-operation  of  two  sovereigns,  even 
in  a  matter  in  which  they  are  mutually  concerned,  is  not,  in  our 
judgment,  of  sufficient  force  to  prevent  concurreiit  and  harmonious 
action  on  the  part  of  the  national  and  State  governments  in  the 
election  of  representatives.  It  is  at  most  an  argument  ah  incon- 
veniente.  There  is  nothing  in  the  Constitution  to  forbid  such  co- 
operation in  this  case.  On  the  contrary,  as  already  said,  we  think 
it  clear  that  the  clause  of  the  Constitution  relating  to  the  regula- 
tion of  such  elections  contemplates  such  co-operation  whenever 
Congress  deems  it  expedient  to  interfere  merely  to  alter  or  add 
to  existing  regulations  of  the  State.  If  the  -two  governments  had 
an  entire  equality  of  jurisdiction,  there  might  be  an  intrinsic  dif- 
ficulty in  such  co-operation.  Then  the  adoption  by  the  State 
government  of  a  system  of  regulations  might  exclude  the  action 
of  Congress.  By  first  taking  jurisdiction  of  the  subject,  the  State 
would  acquire  exclusive  jurisdiction  in  virtue  of  a  well-known 
principle  applicable  to  courts  having  co-ordinate  jurisdiction  over 
the  same  matter.  But  no  such  equality  exists  in  -the  present  case. 
The  power  of  Congress,  as  we  have  seen,  is  paramount,  and 
may  be  exercised  at  any  time,  and  to  any  extent  which  it  deems 
expedient;  and  so  far  as  it  is  exercised,  and  no  farther,  the  regu- 
lations effected  supersede  those  of  tlie  State  which  are  incon- 
sistent therewith. 

As  a  general  rule,  it  is  no  doubt  expedient  and  wise  that  the 
operations  of  the  State  and  national  governments  should,  as  far 
as  practicable,  be  conducted  separately,  in  order  to  avoid  undue 
jealousies  and  jars  and  conflicts  of  jurisdiction  and  power.  But 
there  is  no  reason  for  laying  this  down  as  a  rule  of  universal  ap- 
plication. It  should  never  be  made  to  override  the  plain  and 
manifest  dictates  of  the  Constitution  itself.  We  cannot  yield  to 
such  a  transcendental  view  of  State  sovereignty.  The  Constitu- 
tion and  laws  of  the  United  States  are  the  supreme  laws  of  the 
land,  and  to  these  every  citizen  of  every  State  owes  obedience, 
whether  in  his  individual  or  official  capacity.  There  are  very 
few  subjects,  it  is  true,  in  which  our  system  of  government,  com- 
plicated as  it  is,  requires  or  gives  room  for  conjoint  action  between 
the  State  and  national  sovereignties.  Generally,  the  powers  given 
by  the  Constitution  to  the  government  of  the  United  States  are 
given  over  distinct  branches  of  sovereignty  from  which  the  State 
governments,  either  expressly  or  by  necessary  implication,  are  ex- 
cluded. But  in  this  case,  expressly,  and  in  some  others,  by  im- 
plication, as  we  have  seen  in  the  case  of  pilotage,  a  concurrent 
jurisdiction  is  contemplated,  that  of  the  State,  however,  being 
37 


578  CASES    ON    CONSTITUTIONAL    LAW. 

subordinate  to  that  of  the  United  States,  whereby  all  questions  of 
precedency  is  eliminated. 

In  what  we  have  said,  it  must  be  remembered  that  we  are  deal- 
ing only  with  the  subject  of  elections  of  representatives  to  Con- 
gress. If  for  its  own  convenience  a  State  sees  fit  to  elect  State 
and  county  officers  at  the  same  time  and  in  conjunction  with  the 
election  of  representatives,  Congress  will  not  be  thereby  deprived 
of  the  right  to  make  regulations  in  reference  to  the  latter,  We 
do  not  mean  to  say,  however,  that  for  any  acts  of  the  officers  of 
election,  having  exclusive  reference  to  the  election  of  State  or 
county  officers,  they  will  be  amenable  to  Federal  jurisdiction;  nor 
do  we  understand  that  the  enactments  of  Congress  now  under 
consideration  have  any  application  to  such  acts. 

It  must  also  be  remembered  that  we  are  dealing  with  the  ques- 
tion of  power,  not  of  the  expediency  of  any  regulations  which 
Congress  has  made.  That  is  not  within  the  pale  of  our  jurisdic- 
tion. In  exercising  the  power,  however,  we  are  bound  to  presume 
that  Congress  has  done  so  in  a  judicious  manner;  that  it  has 
endeavored  to  guard  as  far  as  possible  against  any  unnecessary 
interference  with  State  laws  and  regulations,  with  the  duties  of 
State  officers,  or  with  local  prejudices.  It  could  not  act  at  all 
so  as  to  accomplish  any  beneficial  object  in  preventing  frauds  and 
violence,  and  securing  the  faithful  performance  of  duty  at  the 
elections,  without  providing  for  the  presence  of  officers  and  agents 
to  carry  its  regulations  into  effect.  It  is  also  difficult  to  see  how 
it  could  attain  these  objects  without  imposing  proper  sanctions 
and  penalties  against  offenders. 

The  views  we  have  expressed  seem  to  us  to  be  founded  on  such 
plain  and  practical  principles  as  hardly  to  need  any  labored  argu- 
ment in  their  support.  "We  may  mystify  anything.  But  if  we 
take  a  plain  view  of  the  words  of  the  Constitution,  and  give  to 
them  a  fair  and  obvious  interpretation,  we  cannot  fail  in  most 
cases  of  coming  to  a  clear  understanding  of  its  meaning.  We  shall 
not  have  far  to  seek.  We  shall  find  it  on  the  surface,  and  not 
in  the  profound  depths  of  speculation. 

The  greatest  difficulty  in  coming  to  a  just  conclusion  arj^es 
from  mistaken  notions  with  regard  to  the  relations  which  sub- 
sist between  the  State  and  national  governments.  It  seems  to  be 
often  overlooked  that  a  national  constitution  has  been  adopted  in 
this  country,  establishing  a  real  government  therein,  operating 
upon  persons  and  territory  and  things;  and  which,  moreover,  is, 
or  should  be,  as  dear  to  every  American  citizen  as  his  State  gov- 
ernment is.     Whenever  the  true  conception  of  the  nature  of  this 


EX  PARTE  SIEBOLD.  679 

government  is  once  conceded,  no  real  difficulty  will  arise  in  the 
just  interpretation  of  its  powers.  But  if  we  allow  ourselves  to 
regard  it  as  a  hostile  organization,  opposed  to  the  proper  sov- 
ereignty and  dignity  of  the  State  governments,  we  shall  continue 
to  be  vexed  with  difficulties  as  to  its  Jurisdiction  and  authority. 
No  greater  jealousy  is  required  to  be  exercised  towards  this  gov- 
ernment in  reference  to  the  preservation  of  our  liberties,  than  is 
proper  to  be  exercised  towards  the  State  governments.  Its  powers 
are  limited  in  number,  and  clearly  defined;  and  its  action  within 
the  scope  of  those  powers  is  restrained  by  a  sufficiently  rigid  bill 
of  rights  for  the  protection  of  its  citizens  from  oppression.  The 
true  interest  of  the  people  of  this  country  requires  that  both  the 
national  and  State  governments  should  be  allowed,  without  jealous 
interference  on  either  side,  to  exercise  all  the  powers  which  re- 
spectively belong  to  them  according  to  a  fair  and  practical  con- 
struction, of  the  Constitution.  State  rights  and  the  rights  of  the 
United  States  should  be  equally  respected.  Both  are  essential 
to  the  preservation  of  our  liberties  and  the  perpetuity  of  our 
institutions.  But  in  endeavoring  to  vindicate  the  one,  we  should 
not  allow  our  zeal  to  nullify  or  impair  the  other. 

Several  other  questions  bearing  upon  the  present  controversy 
have  been  raised  by  the  counsel  of  the  petitioners.  Somewhat  akin 
to  the  argument  which  has  been  considered  is  the  objection  that 
the  deputy  marshals  authorized  by  the  act  of  Congress  to  be  created 
and  to  attend  the  elections  are  authorized  'to  keep  the  peace;  and 
that  this  is  a  duty  which  belongs  to  the  State  authorities  alone. 
It  is  argued  that  the  preservation  of  peace  and  good  order  in  so- 
ciety is  not  within  the  powers  confided  to  the  government  of  the 
United  States,  but  belongs  exclusively  to  the  States.  Here  again 
we  are  met  with  the  theory  that  the  government  of  the  United 
States  does  not  rest  upon  the  soil  and  territory  of  the  country. 
We  think  that  this  theory  is  founded  on  an  entire  misconception 
of  the  nature  and  powers  of  that  government.  We  hold  it  to  be 
an  incontrovertible  principle,  that  the  government  of  the  United 
States  may,  by  means  of  physical  force,  exercised  through  its 
official  agents,  execute  on  every  foot  of  American  soil  the  powers 
and  functions  that  belong  to  it.  This  necessarily  involves  the 
power  to  command  obedience  to  its  laws,  and  hence  the  power 
to  keep  the  peace  to  that  extent. 

This  power  to  enforce  its  laws  and  to  execute  its  functions 
in  all  places  does  not  derogate  from  the  powers  of  the  State  to 
execute  its  laws  at  the  same  time  and  in  the  same  places.  The 
one  does  not  exclude  the  other,  except  where  both  cannot  be 


580  CASES    ON    CONSTITUTIONAL    LAW. 

executed  at  the  same  time.  In  that  case,  the  words  of  the  Con- 
stitution itself  show  which  is  to  yield.  "This  Constitution,  and 
all  laws  which  shall  he  made  in  pursuance  thereof,  .  .  .  shall 
be  the  supreme  law  of  the  land." 

This  concurrent  jurisdiction  which  the  national  government 
necessarily  possesses  to  exercise  its  powers  of  sovereignty  in  all 
parts  of  the  United  States  is  distinct  from  that  exclusive  power 
which,  by  the  first  article  of  the  Constitution,  it  is  authorized  to 
exercise  over  the  District  of  Columbia,  and  over  those  places  witliin 
a  State  which  are  purchased  by  consent  of  the  legislature  thereof, 
for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other 
needful  buildings.  There  its  jurisdiction  is  absolutely  exclusive 
of  that  of  the  State,  unless,  as  is  sometimes  stipulated,  power  is 
given  to  the  latter  to  serve  the  ordinary  process  of  its  courts  in 
the  precinct  acquired. 

Without  the  concurrent  sovereignty  referred  to,  the  national 
government  would  be  nothing  but  an  advisory  government.  Its 
executive  power  would  be  absolutely  nullified. 

Why  do  we  have  marshals  at  all,  if  they  cannot  physically  lay 
their  hands  on  persons  and  things  in  the  performance  of  their 
proper  duties?  What  functions  can  they  perform,  if  they  cannat 
use  force?  In  executing  the  processes  of  the  courts,  must  thoy 
call  on  the  nearest  constable  for  protection?  Must  they  rely  on 
him  to  use  the  requisite  compulsion,  and  to  keep  the  peace  whilst 
tbey  are  soliciting  and*  entreating  the  parties  and  bystanders  to 
allow  the  law  to  take  its  course?  This  is  the  necessary  conse- 
quence of  the  positions  that  are  assumed.  If  we  indulge  in  such 
impracticable  views  as  these,  and  keep  on  refining  and  re-refining, 
we  shall  drive  the  national  government  out  of  the  United  States, 
and  relegate  it  to  the  District  of  Columbia,  or  perhaps  to  some 
foreign  soil.  We  shall  bring  it  back  to  a  condition  of  greater  help- 
lessness than  that  of  the  old  confederation. 

The  argument  is  based  on  a  strained  and  impracticable  view  of 
the  nature  and  powers  of  the  national  government.  •  It  must  exe- 
cute its  powers,  or  it  is  no  government.  It  must  execute  them 
OE  the  land  as  well  as  on  th§  sea,  on  things  as  well  as  on  persons. 
And,  to  do  this,  it  must  necessarily  have  power  to  command  obedi- 
ence, preserve  order,  and  keep  the  peace;  and  no  person  or  power 
in  this  land  has  the  right  to  resist  or  question  its  authority,  so 
long  as  it  keeps  within  the  bounds  of  its  jurisdiction.  Without 
specifying  other  instances  in  which  this  power  to  preserve  order 
and  keep  the  peace  unquestionably  exists,  take  the  very  case  in 
hand.    The  counsel  for  the  petitioners  concede  that  Congress  may. 


EX  PARTE  SIEBOLD.  581 

if  it  sees  fit,  assume  the  entire  control  and  regulation  of  the  elec- 
tion of  representatives.  This  would  necessarily  involve  the  ap- 
pointment of  the  places  for  holding  the  polls,  the  times  of  voting, 
and  the  officers  for  holding  the  election;  it  would  require  the  regu- 
lation of  the  duties  to  be  performed,  the  custody  of  the  ballots,  the 
mode  of  ascertaining  the  result,  and  every  other  matter  relating 
to  the  subject.  Is  it  possible  that  Congress  could  not,  in  that 
case,  provide  for  keeping  the  peace  at  such  elections,  and  for  ar- 
resting and  punishing  those  guilty  of  breaking  it?  If  it  could 
not,  its  power  would  be  but  a  shadow  and  a  name.  But,  if  Con- 
gress can  do  this,  where  is  the  difference  in  principle  in  its  making 
provision  for  securing  the  preservation  of  the  peace,  so  as  to  give 
to  every  citizen  his  free  right  to  vote  without  molestation  or 
injury,  when  it  assumes  only  to  supervise  the  regulations  made 
by  the  State,  and  not  to  supersede  them  entirely?  In  our  judg- 
ment, there  is  no  difference;  and,  if  the  power  exists  in  the  one 
case,  it  exists  in  the  other. 

The  next  point  raised  is,  that  the  act  of  Congress  proposes  to 
operate  on  officers  or  persons  authorized  by  State  laws  to  perform 
certain  duties  under  them,  and  to  require  them  to  disobey  and  dis- 
regard State  laws  when  they  come  in  conflict  with  the  act  of 
Congress;  that  it  thereby  of  necessity  produces  collision,  and  is 
therefore  void.  This  point  has  been  already  fully  considered.  We 
have  shown,  as  we  think,  that,  where  the  regulations  of  Congress 
conflict  with  those  of  the  State,  it  is  the  latter  which  are  void,  and 
not  the  regulations  of  Congress;  and  that  the  laws  of  the  State, 
in  so  far  as  they  are  inconsistent  with  the  laws  of  Congress  on 
the  same  subject,  cease  to  have  effect  as  laws.     .     .     . 

The  doctrine  laid  down  at  the  close  of  counsel's  brief,  that  the 
State  and  national  governments  are  co-ordinate  and  altogether 
equal,  on  which  their  whole  argument,  indeed,  is  based,  is  only 
partially  true. 

The  true  doctrine,  as  we  conceive,  is  this,  that  whilst  the  States 
are  really  sovereign  as  to  all  matters  which  have  not  been  granted 
to  the  jurisdiction  and  control  of  the  United  States,  the  Consti- 
tution and  constitutional  laws  of  the  latter  are,  as  we  have  already 
said,  the  supreme  law  of  the  land;  and,  when  they  conflict  with 
the  laws  of  the  States,  they  are  of  paramount  authority  and  obli- 
gation. This  is  the  fundamental  principle  on  which  the  author- 
ity of  the  Constitution  is  based;  and  unless  it  be  conceded  in  prac- 
tice, as  well  as  theory,  the  fabric  of  our  institutions,  as  it  was  con- 
templated by  its  founders,  cannot  stand.  The  questions  involved 
have  respect  not  more  to  the  autonomy  and  existence  of  the  States, 


582  CASES    ON    CONSTITUTIONAL    LAW. 

than  to  the  continued  existehce  of  the  United  States  as  a  govern- 
ment to  which  every  American  citizen  may  look  for  security  and 
protection  in  every  part  of  the  land. 

"We  think  that  the  cause  of  commitment  in  these  cases  was  law- 
ful, and  that  the  application  for  the  writ  of  habeas  corpus  must 
be  denied. 

Application  denied. 

Mb.  Justice  Cliffoed  and  Mr.  Justice  Field  dissented. 

Note. — Questions  as  to  the  relation  of  the  Federal  Govern- 
ment and  the  States  have  arisen  most  frequently  in  connection 
with  the  judicial  power,  taxation,  and  the  regulation  of  com- 
merce. On  this  point  the  cases  included  in  chapters  IV  and 
XIV  should  be  consulted,  as  well  as  the  following  cases  under 
taxation  (chap.  II):  McCulloch  v.  Maryland,  "Weston  v.  Charles- 
ton, License  Tax  Cases,  and  The  Collector  v.  Day.  Under  the 
executive  power  see  In  re  Neagle,  and  for  a  general  discussion 
see  Barron  v.  Baltimore.  Among  the  many  valuable  discussions 
in  periodicals  the  following  are  noteworthy:  "The  American 
Commonwealth:  Changes  in  Its  Relation  to  the  Nation,"  by  Prof. 
John  "W.  Burgess,  Political  Science  Quarterly,  I,  9  (1886);  "Are 
the  States  Equal  Under  the  Constitution?"  by  Prof.  "V\''m.  A. 
Dunning,  Ibid.,  Ill,  425  (1888);  "Recent  Centralizing  Tendencies 
in  the  Supreme  Court,"  by  F.  P.  Powers,  Ibid.,  V,  389  (1890); 
"A  New  Nation,"  by  H.  R.  Bailey,  Harvard  Law  Review,  IX,  309 
(1895). 


XIII.    INTERNATIONAL  RELATIONS.— INDIAN  AF- 
FAIRS 


In  The  Ameeicax  Insueance  Company  v.  Caxtee,  1  Peters, 
511  (1828),  Chief  Justice  Maeshall  said: 

"The  course  which  the  argument  has  taken,  will  require  that, 
in  deciding  this  question,  the  court  should  take  into  view  the 
relation  in  which  Florida  stands  to  the  United  States. 

"The  constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties;  conse- 
quently, that  government  possesses  the  power  of  acquiring  terri- 
tory, either  by  conquest  or  by  treaty. 

"The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued, 
to  consider  the  holding  of  conquered  territory  as  a  mere  military 
occupation,  until  its  fate  shall  be  determined  at  the  treaty  of 
peace.  If  it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed, 
and  the  ceded  'territory  becomes  a  part  of  the  nation  to  which  it  is 
annexed,  either  on  the  terms  stipulated  in  the  treaty  of  cession,  or 
on  such  as  its  new  master  shall  impose.  On  such  transfer  of  terri- 
tory, it  has  never  been  held  that  the  relations  of  the  inhabitants 
with  each  other  undergo  any  change.  Their  relations  with  their 
former  sovereign  are  dissolved,  and  new  relations  are  created  be- 
tween them  and  the  government  which  has  acquired  their  terri- 
tory. The  same  act  which  transfers  their  country,  transfers  the 
allegiance  of  those  who  remain  in  it;  and  the  law,  which  may  be 
denominated  political,  is  necessarily  changed,  although  that  which 
regulates  the  intercourse  and  general  conduct  of  individuals,  re- 
mains in  force  until  altered  by  the  newly  created  power  of  the 
state. 

"On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the  United 
States.  The  6th  article  of  the  treaty  of  cession,^  contains  the  fol- 
lowing provision:  "The  inhabitants  of  the  territories  which  his 
Catholic  Majesty  cedes  to  the  United  States  by  this  treaty,  shall 
be  incorporated  in  the  Union  of  the  United  States,  as  soon  as  may 

1 8  Stats,  at  Large,  252. 
583 


584  CASES    ON    CONSTITUTIONAL    LAW. 

be  consistent  with  the  principles  of  the  federal  constitution,  and 
admitted  to  the  enjoyment  of  the  privileges,  rights,  and  immunities 
of  the  citizens  of  the  United  States," 

"This  treaty  is  the  law  of  the  land^  and  admits  the  inliabitants 
of  Florida  to  the  enjoyment  of  the  privileges,  rights,  and  immu- 
nities of  the  citizens  of  the  United  States.  It  is  unnecessary  to 
inquire  whether  this  is  not  their  condition,  independent  of  stipu- 
lation. They  do  not,  however,  participate  in  political  power;  they 
do  not  share  in  the  government  till  Florida  shall  become  a  State. 
In  the  meantime,  Florida  continues  to  be  a  territory  of  the  United 
States,  governed  by  virtue  of  that  clause  in  the  constitution  which 
empowers  congress  "to  make  all  needful  rules  and  regulations  re- 
specting the  territory  or  other  property  belonging  to  the  United 
States." 

"Perhaps  the  power  of  governing  a  territory  belonging  to  the 
United  States,  which  has  not,  by  becoming  a  State,  acquired  the 
means  of  self-government,  may  result  necessarily  from  the  facts 
that  it  is  not  within  the  jurisdiction  of  any  particular  State,  and 
is  within  the  power  and  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  inevitable  consequence  of  the  right  to 
acquire  territory.  Whichever  may  be  the  source  whence  the  power 
is  derived,  the  possession  of  it  is  unquestioned.  In  execution  of  it, 
congress,  in  1822,  passed  "an  act  for  the  establishment  of  a  terri- 
torial government  in  Florida,"^  and  on  the  3d  of  March,  1823, 
passed  another  act  to  amend  the  act  of  1822.  Under  -this  act, 
the  territorial  legislature  enacted  the  law  now  under  consideration. 


THE  CHEEOKEE  NATION"  v.  THE  STATE  OF  GEOEGIA. 

5  Peters,  1.     Decided  1831. 

This  was  an  original  bill  filed  in  this  court  by  the  Cherokee 
Nation  against  the-  State  of  Georgia,  and  also  a  supplemental  bill 
by  the  same  complainant  against  the  same  defendant,  upon  which 
the  complainant  moved  for  a  subpoena  to  the  State,  and  also  for 
a  temporary  injunction  to  restrain  the  State  from  enforcing  the 
laws  of  Georgia  within  the  territory  alleged  to  belong  exclusively 
to  the  complainants.  As  the  decision  of  the  court  rested  solely  on 
the  ground  of  want  of  jurisdiction,  it  is  not  deemed  necessary  to 

2  3  Stats,  at  Large,  654. 


CHEROKEE  NATION  v.  GEORGIA.  585 

state  the  contents  of  the  bills,  any  further  than  they  bear  on 
that  question. 

The  bill  set  forth  the  complainants  to  be  "the  Cherokee  Nation 
of  Indians,  a  foreign  state,  not  owing  allegiance  to  the  United 
States,  nor  to  any  State  of  this  Union,  nor  to  any  prince,  poten- 
tate, or  state,  other  than  their  own." 

"That  from  time  immemorial,  the  Cherokee  Nation  have  com- 
posed a  sovereign  and  independent  state,  and  in  this  character  have 
been  repeatedly  recognized,  and  still  stand  recognized,  by  the 
United  States,  in  the  various  treaties  subsisting  between  their 
nation  and  the  United  States."  And  it  proceeds  to  state  when 
these  were  made,  and  their  substance,  and  shows  how  certain  laws 
of  Georgia  are  repugnant  thereto. 

On  the  day  appointed  for  the  hearing,  the  counsel  for  the  com- 
plainants filed  a  supplemental  bill,  which  states  that  since  their 
bill,  now  submitted,  was  drawn,  acts,  demonstrative  of  the  deter- 
mination of  the  State  of  Georgia  to  enforce  her  assumed  authority 
over  the  complainants  and  their  territosy,  property,  and  jurisdic- 
tion, have  taken  place,  and  it  sets  out  those  acts.     .     .     . 

No  counsel  appeared  for  the  State  of  Georgia. 

Maeshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  bill  is  brought  by  the  Cherokee  nation,  praying  an  injunc- 
tion to  restrain  the  State  of  Georgia  from  the  execution  of  certain 
laws  of  that  State,  which,  as  is  alleged,  go  directly  to  annihilate  the 
Cherokees  as  a  political  society,  and  to  seize,  for  the  use  of  Georgia, 
the  lands  of  the  nation  which  have  been  assured  to  them  by  the 
United  States  in  solemn  treaties  repeatedly  made  and  still  in 
force.     .     .     . 

Before  we  can  look  into  the  merits  of  the  case,  a  preliminary  in- 
quiry presents  itself.    Has  this  court  jurisdiction  of  the  cause? 

The  3d  article  of  the  constitution  describes  the  extent  of  the 
judicial  power.  The  2d  section  closes  an  enumeration  of  the  cases 
to  which  it  is  extended,  with  "controversies"  "between  a  State  or 
the  citizens  thereof  and  foreign  states,  citizens,  or  subjects."  A 
subsequent  clause  of  the  same  section  gives  the  supreme  court  orig- 
inal jurisdiction  in  all  cases  in  which  a  State  shall  be  a  party. 
The  party  defendant  may,  then,  unquestionably  be  sued  in  this 
court.  May  the  plaintiff  sue  in  it?  Is  the  Cherokee  nation  a  for- 
eign state  in  the  sense  in  which  that  term  is  used  in  the  consti- 
tution? 

The  counsel  for  the  plaintiffs  have  maintained  the  affirmative 
of  this  proposition  with  great  earnestness  and  ability.     So  much 


586  CASES    ON    CONSTITUTIONAL    LAW. 

of  the  argument  as  was  intended  to  prove  the  character  of  the  Cher- 
okees  as  a  state,  as  a  distinct  political  society,  separated  from 
others,  capable  of  managing  its  own  affairs  and  governing  itself, 
has,  in  the  opinion  of  a  majority  of  the  judges,  been  completely 
successful.  They  have  been  uniformly  treated  as  a  state  from  the 
settlement  of  our  country.  The  numerous  treaties  made  by  them 
with  the  United  States  recognize  them  as  a  people  capable  of 
maintaining  the  relations  of  peace  and  war,  of  being  responsible  in 
their  political  character  for  any  violation  of  their  engagements,  or 
for  any  aggression  committed  on  the  citizens  of  the  United  States 
by  any  individual  of  their  community.  Laws  have  been  enacted 
in  the  spirit  of  these  treaties.  The  acts  of  our  government  plainly 
recognize  the  Cherokee  nation  as  a  state,  and  the  courts  are  bound 
by  those  acts. 

A  question  of  much  more  difficulty  remains.  Do  the  Cherokees 
constitute  a  foreign  stale  in  the  sense  of  the  constitution? 

The  counsel  have  shown  conclusively  that  they  are  not  a  State 
of  the  Union,  and  have  insisted  that  individually  they  are  aliens, 
not  owing  allegiance  to  the  United  States.  An  aggregate  of  aliens 
composing  a  state  must,  they  say,  be  a  foreign  state.  Each  indi- 
vidual being  foreign,  the  whole  must  be  foreign. 

This  argument  is  imposing,  but  we  must  examine  it  more  closely 
before  we  yield  to  it.  The  condition  of  the  Indians  in  relation  to 
the  United  States  is  perhaps  unlike  that  of  any  other  two  people  in 
existence.  In  the  general,  nations  not  owing  a  common  allegiance 
are  foreign  to  each  other.  The  term  foreign  nation  is,  with  strict 
propriety,  applicable  by  either  to  the  other.  But  the  relation  of 
the  Indians  to  the  United  States  is  marked  by  peculiar  and  cardinal 
distinctions  which  exist  nowhere  else. 

The  Indian  territory  is  admitted  to  form  a  part  of  the  United 
States.  In  all  our  maps,  geographical  treatises,  histories,  and  laws, 
it  is  so  considered.  In  all  our  intercourse  with  foreign  nations,  in 
our  commercial  regulations,  in  any  attemnt  at  intercourse  between 
Indians  and  foreign  nations,  they  are  considered  as  within  the  juris- 
dictional limits  of  the  United  States,  subject  to  many  of  those  re- 
straints which  are  imposed  upon  our  own  citizens.  They  acknowl- 
edge themselves  in  their  treaties  to  be  under  the  protection  of  the 
United  States;  they  admit  that  the  United  States  shall  have  the 
sole  and  exclusive  right  of  regulating  the  trade  with  them,  and 
managing  all  their  affairs  as  they  think  proper;  and  the  Chero- 
kees in  particular  were  allowed  by  the  treaty  of  Hopewell,^  which 
preceded  the  constitution,  "to  send  a  deputy  of  their  choice,  when- 
1  7  Statutes  at  Large,  18. 


CHEROKEE  NATION  v.  GEORGIA.  587 

ever  they  think  proper,  to  congress."  Treaties  were  made  with 
some  tribes  by  the  State  of  New  York,  under  a  then  unsettled 
construction  of  the  confederation,  by  which  they  ceded  all  their 
lands  to  that  State,  taking  back  a  limited  grant  to  themselves,  iv 
which  they  admit  their  dependence. 

Though  the  Indians  are  acknowledged  to  have  an  unquestionabl'; 
and,  therefore,  unquestioned  right  to  the  land  they  occupy,  unti- 
that  right  shall  be  extinguished  by  a  voluntary  cession  to  our  gov- 
ernment; yet  it  may  be  doubted  whether  those  tribes  which  reside 
within  the  acknowledged  boundaries  of  the  United  States  can,  with 
strict  accuracy,  be  denominated  foreign  nations.  They  may,  more 
correctly,  perhaps,  be  denominated  domestic  dependent  nations. 
They  occupy  a  territory  to  which  *we  assert  a  title  independent  of 
their  will,  which  must  take  effect  in  point  of  possession  when  their 
right  of  possession  ceases.  Meanwhile  they  are  in  a  state  of  pupil- 
age. Their  relation  to  the  United  States  resembles  that  of  a  ward 
to  his  guardian. 

They  look  to  our  government  for  protection;  rely  upon  its  kind- 
ness and  its  power;  appeal  to  it  for  relief  to  their  wants;  and  ad- 
dress the  President  as  their  great  father.  They  and  their  country 
are  considered  by  foreign  nations,  as  well  as  by  ourselves,  as  being 
so  completely  under  the  sovereignty  of  the  United  States,  that  any 
attempt  to  acquire  their  lands,  or  to  form  a  political  connection 
with  them,  would  be  considered  by  all  as  an  invasion  of  our  terri- 
tory, and  an  act  of  hostility. 

These  considerations  go  far  to  support  the  opinion  that  the 
framers  of  our  constitution  had  not  the  Indian  tribes  in  view,  when 
they  opened  the  courts  of  the  Union  to  controversies  between  a 
State  or  the  citizens  thereof  and  foreign  states. 

In  considering  this  subject,  the  habits  and  usages  of  the  Indians, 
in  their  intercourse  with  their  white  neighbors,  ought  not  to  be 
entirely  disregarded.  At  the  time  the  constitution  was  framed, 
the  idea  of  appealing  to  an  American  court  of  justice  for  an  asser- 
tion of  right  or  a  redress  of  wrong,  had,  perhaps,  never  entered  the 
mind  of  an  Indian  or  his  tribe.  Their  appeal  was  to  the  tomahawk, 
or  to  the  government.  This  was  well  understood  by  the  statesmen 
who  framed  the  constitution  of  the  United  States,  and  might  fur- 
nish some  reason  for  omitting  to  enumerate  them  among  the  par- 
ties who  might  sue  in  the  courts  of  the  Union.  Be  this  as  it  may, 
the  peculiar  relations  between  the  United  States  and  the  Indians 
occupying  our  territory  are  such,  that  we  should  feel  much  difficulty 
in  considering  them  as  designated  by  the  term  foreign  state,  were 
there  no  other  part  of  the  constitution  which  might  shed  light  on 


588  CASES    ON    CONSTITUTIONAL    LAW. 

the  meaning  of  these  words.  But  we  think  that  in  construing 
them,  considerable  aid  is  furnished  by  that  clause  in  the  8th  sec- 
tion of  the  1st  article,  which  empowers  congress  to  "regulate  com- 
merce with  foreign  nations,  and  among  the  several  States,  and  with 
the  Indian  tribes." 

In  this  clause  they  are  as  clearly  contradistinguished  by  a  name 
appropriate  to  themselves,  from  foreign  nations,  as  from  the  sev- 
eral States  composing  the  Union.  They  are  designated  by  a  distinct 
appellation;  and  as  this  appellation  can  be  applied  to  neither  of 
the  others,  neither  can  the  appellation  distinguishing  either  of  the 
others  be  in  fair  construction  applied  to  them.  The  objects,  to 
which  the  power  of  regulating  commerce  might  be  directed,  are 
divided  into  three  distinct  classes — foreign  nations,  the  several 
States,  and  Indian  tribes.  When  forming  this  article,  the  conven- 
tion considered  them  as  entirely  distinct.  We  cannot  assume  that 
the  distinction  was  lost  in  framing  a  subsequent  article,  unless 
there  be  something  in  its  language  to  authorize  the  assumption. 

The  counsel  for  the  plaintiffs  contend  that  the  words  "Indian 
tribes"  were  introduced  into  the  article  empowering  congress  to 
regulate  commerce,  for  the  purpose  of  removing  those  doubts  in 
which  the  management  of  Indian  affairs  was  involved  by  the  lan- 
guage of  the  9th  article  of  the  confederation.  Intending  to  give 
the  whole  power  of  managing  those  affairs  to  the  government  about 
to  be  instituted,  the  convention  conferred  it  explicitly,  and  omitted 
those  qualifica'tions  which  embarrassed  the  exercise  of  it  as  granted 
in  the  confederation.  This  may  be  admitted  without  weakening 
the  construction  which  has  been  intimated.  Had  the  Indian  tribes 
been  foreign  nations,  in  the  view  of  the  convention,  this  exclusive 
power  of  regulating  intercourse  with  them  might  have  been,  and 
most  probably  would  have  been,  specifically  given,  in  language 
indicating  that  idea,  not  in  language  contradistinguishing  them 
from  foreign  nations.  Congress  might  have  been  empowered  "to 
regulate  commerce  with  foreign  nations,  including  the  Indian 
tribes,  and  among  the  several  States."  This  language  would  have 
suggested  itself  to  statesmen  who  considered  the  Indian  tribes  as 
foreign  nations,  and  were  yet  desirous  of  mentioning  them  par- 
ticularly. 

It  has  also  been  said  that  the  same  words  have  not  necessarily 
the  same  meaning  attached  to  them  when  found  in  different  parts 
of  the  same  instrument;  their  meaning  is  controlled  by  the  con- 
text. This  is  undoubtedly  true.  In  common  language,  the  same 
word  has  various  meanings,  and  the  peculiar  sense  in  which  it  is 
used  in  any  sentence  is  to  be  determined  by  the  context.    This  may 


CHEROKEE  NATION  v.  GEORGIA.  589 

not  be  equally  true  with  respect  to  proper  names.  Foreign  na- 
tions, is  a  general  term,  the  application  of  which  to  Indian  tribes, 
when  used  in  the  American  constitution,  is  at  best  extremely 
questionable.  In  one  article,  in  which  a  power  is  given  to  be 
exercised  in  regard  to  foreign  nations  generally,  and  to  the  Indian 
tribes  particularly,  they  are  mentioned  as  separate  in  terms  clearly 
contradistinguishing  them  from  each  other.  We  perceive  plainly 
that  the  constitution,  in  this  article,  does  not  comprehend  Indian 
tribes  in  the  general  term  "foreign  nations;"  not,  we  presume,  be- 
cause a  tribe  may  not  be  a  nation,  but  because  it  is  not  foreign  to 
the  United  States.  When,  afterwards,  the  term  "foreign  states" 
is  introduced,  we  cannot  impute  to  the  convention  the  intention 
to  desert  its  farmer  meaning,  and  to  comprehend  Indian  tribes 
within  it,  unless  the  context  force  that  construction  upon  us.  We 
find  nothing  in  the  context,  and  nothing  in  the  subject  of  the  arti- 
cle, which  leads  to  it. 

The  court  has  bestowed  its  best  attention  on  this  question,  and, 
after  mature  deliberation,  the  majority  is  of  opinion  that  an  Indian 
tribe  or  nation  within  the  United  States  is  not  a  foreign  state,  in 
the  sense  of  the  constitution,  and  cannot  maintain  an  action  in  the 
courts  of  the  United  States. 

A  serious  additional  objection  exists  to  the  jurisdiction  of  the 
court.  Is  the  matter  of  the  bill  the  proper  subject  for  judicial 
inquiry  and  decision?  It  seeks  to  restrain  a  State  from  the  forcible 
exercise  of  legislative  power  over  a  neighboring  people,  asserting 
their  independence;  their  right  to  which  the  State  denies.  On 
several  of  the  matters  alleged  in  the  bill,  for  example  on  the  laws 
making  it  criminal  to  exercise  the  usual  powers  of  self-government 
in  their  own  country  by  the  Cherokee  nation,  this  court  cannot 
interpose;  at  least  in  the  form  in  which  those  matters  are  pre- 
sented. 

That  part  of  the  bill  which  respects  the  land  occupied  by  the 
Indians,  and  prays  the  aid  of  the  court  to  protect  their  possession, 
may  be  more  doubtful.  The  mere  question  of  right  might, 
perhaps,  be  decided  by  this  court  in  a  proper  case  with  proper 
parties.  But  the  court  is  asked  to  do  more  than  decide  on  the  title. 
The  bill  requires  us  to  control  the  legislature  of  Georgia,  and  to 
restrain  the  exertion  of  its  physical  force.  The  propriety  of  such 
an  interposition  by  the  court  may  be  well  questioned.  It  savors 
too  much  of  the  exercise  of  political  power  to  be  within  the  proper 
province  of  the  judicial  department.  But  the  opinion  on  the  point 
respecting  parties,  makes  it  unnecessary  to  decide  this  question. 

If  it  be  true  that  the  Cherokee  nation  have  rights,  this  is  not 


590  CASES    ON    CONSTITUTIONAL    LAW. 

the  tribunal  in  which  those  rights  are  to  be  asserted.  If  it  be  true 
that  wrongs  have  been  inflicted,  and  that  still  greater  are  to  be 
apprehended,  this  is  not  the  tribunal  which  can  redress  the  pa^t 
or  prevent  the  future. 

The  motion  for  an  injunction  is  denied. 

[Justices  Johnson  and  Baldwin  delivered  long  concurring 
opinions.  Justice  Thompson  delivered  a  dissenting  opinion,  in 
which  Justice  Story  concurred.] 

XoTE. — "The  political  importance  of  the  Cherokee  case  lay  in 
the  fact  that  its  result  was  the  first  successful  nullification,  in  its 
modern  sense,  of  the  laws  of  the  United  States."  Alexander  John- 
ston in  Lalor  s  Cyclopedia,  I,  394. 


WORCESTEE  v.   THE   STATE    OF   GEOEGIA. 
6  Peters,  515.    Decided  1832. 

Error  to  the  superior  court  for  the  county  of  Gwinnett  in  the 
State  of  Georgia.  .  .  .  [The  plaintiff  in  error,  a  missionary 
from  Vermont,  residing  within  the  limits  of  the  Cherokee  nation 
by  permission  of  the  United  States,  was  arrested  and  sentenced  to 
imprisonment  under  a  law  of  the  State  of  Georgia  forbidding  such 
residence  without  a  license  from  the  State.] 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  cause,  in  every  point  of  view  in  which  it  can  be  placed,  is 
of  the  deepest  interest. 

The  defendant  is  a  Stale^a  member_of  the  Union,  wtiL?Jv->in^ 
exercised  the  powers  of  government  over  a  people,  who  deny  its 
jurTsdiction,  and  are  under  the  protection  of  the  United  States. 

The  plaintiff  is  a  citizen  of  the  State  of  Vermont,  condemned  to 
hard  labor  for  four  years  in  the  penitentiar}^  of  Georgia  under  color 
of  an  act  which  he  alleges  to  be  repugnant  to  the  constitution,  laws 
and  treaties  of  the  United  States. 

The  legislative  power  of  a  State,  the  controlling  power  of  the 
constitution  and  laws  of  the  United  States,  the  rights,  if  they  have 
any,  the  political  existence  of  a  once  numerous  and  powerful  people, 
the  personal  liberty  of  a  citizen,  are  all  involved  in  the  subject  now 
to  be  considered.     .     .     .     [The  first  part  of  the  opinion  consists 


WORCESTER  v.  GEORGIA.  591 

of  a  consideration  of  the  jurisdiction  of  the  court  and  a  discussion 
of  the  relations  of  the  Indian  tribes  with  the  governments  of  Great 
Britain,  the  Colonies  and  the  United  States.] 

The  treaties  and  laws  of  the  United  States  contemplate  the  In- 
dian territory  as  completely  separated  from  that  of  the  States;  and 
provide  that  all  intercourse  with  them  shall  be  carried  on  ex- 
clusively by  the  government  of  the  Union. 

Is  this  the  rightful  exercise  of  power,  or  is  it  usurpation? 

While  these  States  were  colonies,  this  power,  in  its  utmost  ex- 
tent, was  admitted  to  reside  in  the  crown.  When  our  revolutionary 
struggle  commenced,  congress  was  composed  of  an  assemblage  of 
deputies  acting  under  specific  powers  granted  by  the  legislatures, 
or  conventions  of  the  several  colonies.  It  was  a  great  popular 
movement,  not  perfectly  organized;  nor  were  the  respective  pow- 
ers of  those  who  w^ere  intrusted  with  the  management  of  affairs 
accurately  defined.  The  necessities  of  our  situation  produced  a 
general  conviction  that  those  measures  which  concerned  all  must 
be  transacted  by  a  body  in  which  the  representatives  of  all  were' 
assembled,  and  which  could  command  the  confidence  of  all:  con- 
gress, therefore,  was  considered  as  invested  with  all  the  powers  of 
war  and  peace,  and  congress  dissolved  our  connection  with  the 
mother  country,  and  declared  these  united  colonies  to  be  independ- 
ent States.  Without  any  written  definition  of  powers,  they  em- 
ployed diplomatic  agents  to  represent  the  United  States  at  the 
several  courts  of  Europe;  offered  to  negotiate  treaties  with  them, 
and  did  actually  negotiate  treaties  with  France.  From  the  same 
necessity,  and  on  the  same  principles,  congress  assumed  the  man- 
agement of  Indian  affairs;  first  in  the  name  of  these  united  col- 
onies; and,  afterwards,  in  the  name  of  the  United  States.  Early 
attempts  were  made  at  negotiation,  and  to  regulate  trade  with 
them.  These  not  proving  successful,  war  was  carried  on  under 
the  direction,  and  with  the  forces  of  the  United  States,  and  the 
efforts  to  make  peace,  by  treaty,  were  earnest  and  incessant.  The 
confederation  found  congress  in  the  exercise  of  the  same  powers 
of  peace  and  war,  in  our  relations  with  Indian  nations,  as  with 
those  of  Europe. 

Such  was  the  state  of  things  when  the  confederation  was  adopted. 
That  instrument  surrendered  the  powers  of  peace  and  war  to  con- 
gress, and  prohibited  them  to  the  States,  respectively,  unless  a  State 
be  actually  invaded,  "or  shall  have  received  certain  advice  of  a 
resolution  being  formed  by  some  nation  of  Indians  to  invade  such 
State,  and  the  danger  is  so  imminent  as  not  to  admit  of  delay  till 
the  United  States  in  congress  assembled  can  be  consulted."    This 


592  CASES    ON    CONSTITUTIONAL    LAW. 

instrument  also  gave  the  United  States  in  congress  assembled  the 
sole  and  exclusive  right  of  "regulating  the  trade  and  managing  all 
the  affairs  with  the  Indians,  not  members  of  any  of  the  States: 
provided,  that  the  legislative  power  of  any  State  within  its  own 
limits  be  not  infringed  or  violated." 

The  ambiguous  phrases  which  follow  the  grant  of  power  to  the 
United  States  were  so  construed  by  the  States  of  North  Carolina 
and  Georgia  as  to  annul  the  power  itself.  The  discontents  and 
confusion  resulting  from  these  conflicting  claims,  produced  repre- 
sentations to  congress,  which  were  referred  to  a  committee,  who 
made  their  report  in  1787.  The  report  does  not  assent  to  the  con- 
struction of  the  two  States,  but  recommends  an  accommodation, 
by  liberal  cessions  of  territory,  or  by  an  admission,  on  their  part, 
of  the  powers  claimed  by  congress.  The  correct  exposition  of  this 
article  is  rendered  unnecessary  by  the  adoption  of  our  existing 
constitution.  That  instrument  confers  on  congress  the  powers  of 
war  and  peace;  of  making  treaties,  and  of  regulating  commerce 
with  foreign  nations,  and  among  the  several  States,  and  with  the 
Indian  tribes.  These  powers  comprehend  all  that  is  required  for 
the  regulation  of  our  intercourse  with  the  Indians.  They  are  not 
limited  by  any  restrictions  on  their  free  actions.  The  shackles  im- 
posed on  this  power,  in  the  confederation,  are  discarded. 

The  Indian  nations  had  always  been  considered  as  distinct,  in- 
dependent political  communities,  retaining  their  original  natural 
rights,  as  the  undisputed  possessors  of  the  soil,  from  time  im- 
memorial, with  the  single  exception  of  that  imposed  by  irresistible 
power,  which  excluded  them  from  intercourse  with  any  other 
European  potentate  than  the  first  discoverer  of  the  coast  of  the 
particular  region  claimed:  and  this  was  a  restriction  which  those 
European  potentates  imposed  on  themselves,  as  well  as  on  the  In- 
dians. The  very  term  "nation,"  so  generally  applied  to  them, 
means  "a  people  distinct  from  others."  The  constitution,  by  de- 
claring treaties  already  made,  as  well  as  those  to  be  made,  to  be 
the  supreme  law  of  the  land,  has  adopted  and  sanctioned  the  pre- 
vious treaties  with  the  Indian  nations,  and  consequently  admits 
their  rank  among  those  powers  who  are  capable  of  making  treaties. 
The  words  "treaty"  and  "nation"  are  words  of  our  own  language, 
selected  in  our  diplomatic  and  legislative  proceedings,  by  ourselves, 
having  each  a  definite  and  well-understood  meaning.  We  have 
applied  them  to  Indians,  as  we  have  applied  them  to  the  other 
nations  of  the  earth.    They  are  applied  to  all  in  the  same  sense. 

Georgia,  herself,  has  furnished  conclusive  evidence  that  her 
former  opinions  on  this  subject  concurred  with  those  entertained 


WORCESTER  v.  GEORGIA.  593 

by  her  sister  States,  and  by  the  government  of  the  United  States. 
Various  acts  of  her  legislature  have  been  cited  in  the  argument,  in- 
cluding the  contract  of  cession  made  in  the  year  1802,  all  tending 
to  prove  her  acquiescence  in  the  universal  conviction  that  the 
Indian  nations  possessed  a  full  right  to  the  lands  they  occupied, 
until  that  right  should  be  extinguished  by  the  United  States,  with 
their  consent;  that  their  territory  was  separated  from  that  of  any 
State  within  whose  chartered  limits  they  might  reside,  by  a  boun- 
dary line,  established  by  treaties;  that,  within  their  boundary,  they 
possessed  rights  with  which  no  State  could  interfere;  and  that  the 
whole  power  of  regulating  the  intercourse  with  them,  was  vested 
in  the  United  States.  A  review  of  these  acts,  on  the  part  of 
Georgia,  would  occupy  too  much  time,  and  is  the  less  necessary, 
because  they  have  been  accurately  detailed  in  the  argument  at  the 
bar.  Her  new  series  of  laws,  manifesting  her  abandonment  of  these 
opinions,  appears  to  have  commenced  in  December,  1828. 

In  opposition  to  this  original  right,  possessed  by  the  undisputed 
occupants  of  every  country;  to  this  recognition  of  that  right, 
which  is  evidenced  by  our  history,  in  every  change  through  which 
we  have  passed;  is  placed  the  charters  granted  by  the  monarch  of  a 
distant  and  distinct  region,  parcelling  out  a  territory  in  possession 
of  others  whom  he  could  not  remove  and  did  not  attempt  to  re- 
move, and  the  cession  made  of  his  claims  by  the  treaty  of  peace. 

The  actual  state  of  things  at  the  time,  and  all  history  since,  ex- 
plain these  charters;  and  the  king  of  Great  Britain,  at  the  treaty 
of  peace,  could  cede  only  what  belonged  to  his  crown.  These 
newly  asserted  titles  can  derive  no  aid  from  the  articles  so  often 
repeated  in  Indian  treaties;  extending  to  them,  first,  the  protec- 
tion of  Great  Britain,  and  afterwards  that  of  the  United  States. 
These  articles  are  associated  with  others,  recognizing  their 
title  to  self-government.  The  v^ry  fact  of  repeated  treaties  with 
them  recognizes  it;  and  the  settled  doctrine  of  the  law  of  nations 
is,  that  a  weaker  power  does  not  surrender  its  independence — its 
right  of  self-government,  by  associating  with  a  stronger,  and  tak- 
ing its  protection.  A  weak  state,  in  order  to  provide  for  its  safety, 
may  place  itself  under  the  protection  of  one  more  powerful,  with- 
out stripping  itself  of  the  right  of  government,  and  ceasing  to  be 
a  state.  Examples  of  this  kin3  are  not  wanting  in  Europe.  "Trib- 
utary and  feudatory  states,"  says  Vattel,  "do  not  thereby  cease  to 
be  sovereign  and  independent  states,  so  long  as  self-government 
and  sovereign  and  independent  authority  are  left  in  the  admin- 
istration of  the  state."  At  the  present  day,  more  than  one  state 
38 


594  CASES    ON    CONSTITUTIONAL    LAW. 

may  be  con&idered  as  holding  its  right  of  self-government  under 
the  guarantee  and  protection  of  one  or  more  allies. 

Thfi^Chjergkee  nation^  then,  is  a  distinct  community^  occupying 
its  own  territory,  with  boundaries  accurately  described,  in  which 
the  laws  of  Georgia  can  have  no  force,  and  which  the  citizens  of 
Georgia  have  no  right  to  enter,  but  with,  the  assent  of  the  Chero- 
kees  themselves,  or  in  conformity  with  treaties  and  with  the  acts 
of  congress.  The  whole  intercourse  between  the  United  States 
and  this  nation,  is,  by  our  constitution  and  laws,  vested  in  the 
government  of  the  United  States. 

The  act  of  the  State  of  Georgia,  under  which  the  plaintiff  in 
error  was  prosecuted,  is  consequently  void,  and  the  judgment  a 
nullity.    Can  this  court  revise  and  reverse  it? 

If  the  objection  to  the  system  of  legislation,  lately  adopted  by 
the  legislature  of  Georgia,  in  relation  to  the  Cherokee  nation,  was 
confined  to  its  extra-territorial  operation,  the  objection,  though 
complete,  so  far  as  respected  mere  right,  would  give  this  court  no 
power  over  the  subject.  But  it  goes  much  further.  If  the  review 
which  has  been  taken  be  correct,  and  we  think  it  is,  the  acts  of 
Georgia  are  repugnant  to  the  constitution,  laws,  and  treaties  of  the 
United  States. 

They  interfere  forcibly  with  the  relations  established  between 
the  United  States  and  the  Cherokee  nation,  the  regulation  of 
which,  according  to  the  settled  principles  of  our  constitution,  are 
committed  exclusively  to  the  government  of  the  Union. 

They  are  in  direct  hostility  with  treaties,  repeated  in  a  succes- 
sion of  years,  which  mark  out  the  boundary  that  separates  the 
Cherokee  country  from  Georgia,  guarantee  to  them  all  the  land 
Avithin  their  boundary,  solemnly  pledge  the  faith  of  the  United 
States  to  restrain  their  citizens  from  trespassing  on  it,  and  recog- 
nize the  pre-exisfting  power  of  the  nation  to  govern  itself. 

They  are  in  equal  hostility  with  the  acts  of  congress  for  regu- 
lating this  intercourse,  and  giving  effect  to  the  treaties. 

The  for^ible.jSfiizurfi-and^bduetion  of- ihe  plaintiff  in  error,  who 
was  residing  in  the  nation  with  its  permission,  and  by  authority 
of  tbe  President  of  the  United  States,  is  also  a  violation  of  the  acts 
AvKTch  authorize  the  chief  magistrate  to  exercise  this  authority. 

Will  ithese  powerful  considerations  avail  the  plaintiff  in  error? 
"We  think  they  will.  He  was  seized,  and  forcibly  carried  away, 
while  under  guardianship  of  treaties  guaranteeing  the  country  in 
M'hich  he  resided,  and  taking  it  under  the  protection  of  the  United 
States,  He  was  seized  while  performing,  under  the  sanction  of  the 
chief  magistra^:e  of  the  Union,  those  duties  which  the  humane 


FONG  YUE  TING  v.  UNITED  STATES.  595 

policy  adopted  by  congress  had  recommended.  He  was  appre- 
hended, tried,  and  condemned,  under  color  of  a  law  which  has  been 
shown  to  be  repugnant  to  the  constitution,  laws,  and  treaties  of  the 
United  States.  Had  a  judgment,  liable  to  the  same  objections, 
been  rendered  for  property,  none  would  question  the  jurisdiction 
of  this  court.  It  cannot  be  less  clear  when  the  judgment  affects 
personal  liberty,  and  inflicts  disgraceful  punishment,  if  punish- 
ment could  disgrace  when  inflicted  on  innocence.  The  plaintiff 
in  error  is  not  less  interested  in  the  operation  of  this  unconstitu- 
tional law  than  if  it  affected  his  property.  He  is  not  less  entitled 
to  the  protection  of  the  constitution,  laws,  and  treaties  of  his 
country. 

This  point  has  been  elaborately  argued  and,  after  deliberate 
consideration,  decided,  in  the  case  of  Cohens  v.  The  Common- 
wealth of  Virginia,  6  Wheat.,  264. 

It  is  the  opinion  of  this  court  that  the  judgment  of  the  superior 
court  for  the  county  of  Gwinnett,  in  the  State  of  Georgia,  con- 
demning Samut'l  A.  Worcester  to  hard  labor,  in  the  penitentiary 
oT^tlie  State  of  Georgia,  for  four  years,  was  pronounced  by  that 
court  under  color  of  a  law  which  is  void,  as  being  repugnant  to  the 
constitution,  treaties,  and  laws  of  the  United  States,  and  ought, 
therefore,  to  be  reversed  and  annulled. 

[Justices  McLean  and  Washixgton  delivered  concurring 
opinions,  and  Justice  Baldwin  rendered  a  dissenting  opinion.] 


FONG   YUE   TIXG   v.    UNITED  STATES. 

WONG  QUAN  V.  UNITED   STATES. 

LEE   JOE  V.   UNITED   STATES. 

149  U.  S.,  698.    Decided  1893. 

These  were  three  writs  of  habeas  corpus,  granted  by  the  Circuit 
Court  of  the  United  States,  for  the  Southern  District  of  New  York, 
upon  petitions  of  Chinese  laborers,  arrested  and  held  by  the  marshal 
of  the  district  for  not  having  certificaites  of  residence,  under  section 
6  of  the  act  of  May  5,  1892,  c.  60,  which  is  copied  in  the  mar- 
gin.    .     .     . 

Each  petition  alleged  that  the  petitioner  was  arrested  and  de- 
tained without  due  process  of  law,  and  that  section  6  of  the  act  of 


596  CASES    ON    CONSTITUTIONAL    LAW. 

May  5,  1892,  was  unconstitutional  and  void.  [The  section  com- 
plained of  required  Chinese  laborers  within  the  limits  of  the 
United  States  at  the  time  of  the  passage  of  the  aot  to  take  out 
certificates  of  residence.  Those  who  neglected  to  do  so  within  one 
year  without  good  cause  were  made  liable  to  deportation.] 

In  each  case,  the  Circuit  Court,  after  a  hearing  upon  the  writ 
of  habeas  corpus  and  the  return  of  the  marshal,  dismissed  the  writ 
of  habeas  corpus,  and  allowed  an  appeal  of  the  petitioner  to  this 
court,  and  admitted  him  to  bail  pending  the  appeal.     .     .     . 

Mr.  Justice  Gray,  after  stating  the  facts,  delivered  the  opinion 
of  the  court. 

The  general  principles  of  public  law  which  lie  at  the  foundation 
of  these  cases  are  clearly  established  by  previous  judgments  of  tills 
court,  and  by  the  authorities  therein  referred  to. 

In  the  recent  case  of  Nishimura  Ekiu  v.  United  States,  142 
U.  S.,  651,  659,  the  court,  in  sustaining  the  action  of  the  execu- 
tive department,  putting  in  force  an  act  of  Congress  for  the  ex- 
clusion of  aliens,  said:  "It  is  an  accepted  maxim  of  international 
law,  that  every  sovereign  nation  has  the  power,  as  inherent  in  sov- 
ereignty, and  essential  to  self-preservation,  to  forbid  the  entrance 
of  foreigners  within  its  dominions,  or  to  admit  them  only  in  such 
cases  and  upon  such  conditions  as  it  may  see  fit  to  prescribe.  In 
the  United  States,  this  power  is  vested  in  the  national  government, 
to  which  the  Constitution  has  committed  the  entire  control  of  inter- 
national relations,  in  peace  as  well  as  in  war.  It  belongs  to  the 
political  department  of  the  government,  and  may  be  exercised 
either  through  treaties  made  by  the  President  and  Senate,  or 
through  statutes  enacted  by  Congress." 

The  same  views  were  more  fully  expounded  in  the  earlier  case 
of  Chae  Chan  Ping  v.  United  States,  130  U.  S.,  581,  in  which  the 
validity  of  a  former  act  of  Congress,  excluding  Chinese  laborers 
from  the  United  States,  under  the  circumstances  therein  stated, 
was  affirmed. 

In  the  elaborate  opinion  delivered  by  Mr.  Justice  Field,  in  behalf 
of  the  court,  it  was  said:  "Those  laborers  are  not  citizens  of  the 
United  States;  they  are  aliens.  That  the  government  of  the 
United  States,  through  the  action  of  the  legislative  department, 
can  exclude  aliens  from  its  territory  is  a  proposition  which  we  do 
not  think  open  to  controversy.  Jurisdiction  over  its  own  territory 
to  that  extent  is  an  incident  of  every  independent  nation.  It  is 
a  part  of  its  independence.  If  it  could  not  exclude  aliens,  it  would 
be  to  that  extent  subject  to  the  control  of  another  power."    "The 


FONG  YUE  TING  v.  UNITED  STATES.  597 

United  States,  in  their  relation  to  foreign  countries  and  their 
subjects  or  citizens,  are  one  nation,  invested  with  powers  which 
belong  to  independent  nations,  the  exercise  of  which  can  be 
invoked  for  the  maintenance  of  its  absolute  independence  and  se- 
curity throughout  its  entire  territory,"       130  U.  S.,  603,  604, 

It  was  also  said,  repeating  the  language  of  Mr,  Justice  Bradley 
in  Knox  v.  Lee,  12  Wall.,  457,  555:  "The  United  States  is  not 
only  a  government,  but  it  is  a  national  government,  and  the  only 
government  in  this  country  that  has  the  character  of  nationality. 
It  is  invested  with  power  over  all  the  foreign  relations  of  the 
country,  war,  peace,  and  negotiations  and  intercourse  with  other 
nations;  all  of  which  are  forbidden  to  the  state  governments," 
130  U.  S.,  605,  And  it  was  added:  "For  local  interests  the 
several  States  of  the  Union  exist;  but  for  international  purposes, 
embracing  our  relations  with  foreign  nations,  we  are  but  one  peo- 
ple, one  nation,  one  power."    130  U.  S.,  606. 

The  court  then  went  on  to  say:  "To  preserve  its  independence, 
and  give  security  against  foreign  aggression  and  encroachment,  is 
the  highest  duty  of  every  nation,  and  to  attain  these  ends  nearly 
all  other  considerations  are  to  be  subordinated.  It  matters  not  in 
what  form  such  aggression  and  encroachment  come,  whether  from 
ithe  foreign  nation  acting  in  its  national  character,  or  from  vast 
hordes  of  its  people  crowding  in  upon  us.  The  government,  pos- 
sessing the  powers  which  are  to  be  exercised  for  protection  and 
security,  is  clothed  with  authority  to  determine  the  occasion  on 
which  the  powers  shall  be  called  forth;  and  its  determination,  so 
far  as  the  subjects  affected  are  concerned,  is  necessarily  conclusive 
upon  all  its  departments  and  officers.  If,  therefore,  the  govern- 
ment of  the  United  States,  through  its  legislative  department, 
considers  the  presence  of  foreigners  of  a  different  race  in  this 
country,  who  will  not  assimilate  with  us,  to  be  dangerous  to  its 
peace  and  security,  their  exclusion  is  not  to  be  stayed  because  at 
the  time  there  are  no  actual  hostilities  with  the  nation  of  which 
the  foreigners  are  subjects.  The  existence  of  war  would  render 
the  necessity  of  the  proceeding  only  more  obvious  and  pressing. 
The  same  necessity,  in  a  less  pressing  degree,  may  arise  when  war 
does  not  exist,  and  the  same  authority  which  adjudges  the  neces- 
sity in  one  case  must  also  determine  it  in  the  other.  In  both  cases, 
its  determination  is  conclusive  upon  the  judiciary.  If  the  gov- 
ernment of  the  country  of  which  the  foreigners  excluded  are  sub- 
jects is  dissatisfied  with  this  action,  it  can  make  complaint  to  the 
executive  head  of  our  government,  or  resort  to  any  other  measures 
which,  in  its  judgment,  its  interests  or  dignity  may  demand;   and 


698  CASES    ON    CONSTITUTIONAL,    LAW. 

there  lies  its  only  remedy.  The  power  of  the  government  to  ex- 
elude  foreigners  from  the  eountr}"^,  whenever,  in  its  judgment,  the 
public  interests  require  such  exclusion,  has  been  asserted  in  re- 
peated instances,  and  never  denied  by  the  executive  or  legislative 
departments."  130  TJ.  S.,  606,  607.  This  statement  was  sup- 
ported by  many  citations  from  the  diplomatic  correspondence  of 
successive  Secretaries  of  State,  collected  in  Wharton's  Interna- 
tional Law  Digest,  §  206. 

The  right  of  a  nation  to  expel  or  deport  foreigners,  who  have 
not  been  naturalized  or  taken  any  steps  towards  becoming  citizens 
of  the  country,  rests  upon  the  same  grounds,  and  is  as  absolute  and 
unqualified  as  the  right  to  prohibit  and  prevent  their  entrance  into 
the  country. 

This  is  clearly  affirmed  in  dispatches  referred  to  by  the  court 
in  Chae  Chan  Ping's  Case.  In  1856,  Mr.  Marcy  wrote:  "Every 
society  possesses  the  undoubted  right  to  determine  who  shall  com- 
pose its  members,  and  it  is  exercised  by  all  nations,  both  in  peace 
and  war.  A  memorable  example  of  the  exercise  of  this  power  in 
time  of  peace  was  the  passage  of  the  alien  law  of  the  United  States 
in  the  year  1798."  In  1869,  Mr.  Fish  wrote:  "The  control  of  the 
people  within  its  limits,  and  the  right  to  expel  from  its  territory 
persons  who  are  dangerous  to  the  peace  of  the  State,  are  too  clearly 
within  the  essential  attributes  of  sovereignty  to  be  seriously  con- 
tested." Wharton's  International  Law  Digest,  §  206;  130  TJ.  S., 
607.     .     . 

The  right  to  exclude  or  to  expel  all  aliens,  or  any  class  of  aliens, 
absolutely  or  upon  certain  conditions,  in  war  or  in  peace,  being  an 
inherent  and  inalienable  right  of  every  sovereign  and  independent 
nation,  essential  to  its  safety,  its  independence,  and  its  welfare, 
the  question  now  before  the  court  is  whether  the  manner  in  which 
Congress  has  exercised  this  right  in  sections  6  and  7  of  the  act  of 
1892  is  consistent  with  the  Constitution. 

The  United  States  are  a  sovereign  and  independent  nation,  and 
are  vested  by  the  Constitution  with  the  entire  control  of  interna- 
tional relations,  and  with  all  the  powers  of  government  necessary 
to  maintain  that  control  and  to  make  it  eifeotive.  The  only  gov- 
ernment of  this  country,  which  other  nations  recognize  or  treat 
with,  is  the  government  of  the  Union;  and  the  only  American 
flag  known  throughout  the  world  is  the  flag  of  the  United  States. 

The  Constitution  of  the  United  States  speaks  vrith  no  uncertain 
sound  upon  this  subject.  That  instrument,  established  by  the 
people  of  the  United  States  as  the  fundamental  law  of  the  land, 
has  conferred  upon  the  President  the  executive  power;   has  made 


FONG  YUE  TING  v.  UNITED  STATES.  599 

him  the  commander-in-chief  of  the  army  and  navy;  has  author- 
ized him,  by  and  with  the  consent  of  the  Senate,  to  make  treaties, 
and  to  appoint  ambassadors,  public  minisiters,  and  consuls;  and 
has  made  it  his  duty  to  take  care  that  the  laws  be  faithfully  exe- 
cuted. The  Constitution  has  granted  to  Congress  the  power  to 
regulate  commerce  with  foreign  naitions,  including  the  entrance 
of  ships,  the  importation  of  goods,  and  the  bringing  of  persons 
into  the  ports  of  the  United  States;  to  establish  a  uniform  rule  of 
naturalization;  to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offenses  against  the  law  of  nations; 
to  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water;  to  raise  and  support 
armies,  to  provide  and  maintain  a  navy,  and  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval  forces;  and  to 
make  all  laws  necessary  and  proper  for  carrying  into  execution 
these  powers,  and  all  other  powers  vested  by  the  Constitution  in 
the  government  of  the  United  States,  or  in  any  department  or 
officer  thereof.  And  the  several  States  are  expressly  forbidden  to 
enter  into  any  treaty,  alliance,  or  confederation;  to  grant  letters 
of  marque  and  reprisal;  to  enter  into  any  agreement  or  compact 
with  another  State,  or  with  a  foreign  power;  or  to  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delay.  * 

In  exercising  the  great  power  which  the  people  of  the  United 
States,  by  establishing  a  written  constitution  as  the  supreme  and 
paramount  law,  have  vested  in  this  court,  of  determining,  when- 
ever the  question  is  properly  brought  before  it,  whether  the  acts 
of  the  legislature  or  of  the  executive  are  consistent  with  the  Con- 
stitution, it  behooves  the  court  to  be  careful  that  it  does  not  under- 
take to  pass  upon  political  questions,  the  "final  decision  of  which 
has  been  committed  by  the  Constitution  to  the  other  departments 
of  the  government. 

As  long  ago  said  by  Chief  Justice  Marshall,  and  since  constantly 
maintained  by  this  court:  "The  sound  construction  of  the  Con- 
stitution must  allow  to  the  national  legislature  that  discretion,  with 
respect  to  the  means  by  which  the  powers  it  confers  are  to  be  car- 
ried into  execution,  which  will  enable  that  body  to  perform  the 
high  duties  assigned  to  it,  in  the  manner  most  beneficial  to  the 
people.  Let  the  end  be  legitimate,  let  it  be  within  the  scope  of 
ithe  Constitution,  and  all  means  which  are  appropriate,  which  are 
plainly  adapted  to  that  end,  which  are  not  prohibited,  but  consist- 
ent with  the  letter  and  spirit  of  the  Constitution,  are  constitu- 
tional."   "Where  the  law  is  not  prohibited,  and  is  really  calculated 


600  CASES    ON    CONSTITUTIONAL    LAW. 

to  effect  any  of  the  objects  intrusted  to  the  government,  to  under- 
take here  to  inquire  into  the  degree  of  its  necessity  would  be  to 
pass  the  line  which  circumscribes  the  judicial  department,  and  to 
tread  on  legislative  ground.  This  court  disclaims  all  pretensions 
to  such  a  power."  McCulloch  v.  Maryland,  4  Wheat.,  316,  421, 
423;  Juilliard  v.  Greenman,  110  U.  S.,  421,  440,  450;  Ex  parte 
Yarbrough,  110  U.  S.,  651,  658;  In  re  Eapier,  143  U.  S.,  110, 
134;   Logan  v.  United  States,  144  U.  S.,  263,  283. 

The  power  to  exclude  or  to  expel  aliens,  being  a  power  affecting 
international  relations,  is  vested  in  the  political  departments  of 
the  government,  and  is  to  be  regulated  by  treaty  or  by  act  of  Con- 
gress, and  to  be  executed  by  the  executive  authority  according  to 
the  regulations  so  established,  except  so  far  as  the  judicial  depart- 
ment has  been  authorized  by  treaty  or  by  statute,  or  is  required  by 
the  paramount  law  of  the  Constitution,  to  intervene. 

In  Nishimura  Ekiu's  Case,  it  was  adjudged  that,  although  Con- 
gress might,  if  it  saw  fit,  authorize  the  courts  to  investigate  and 
ascertain  the  facts  upon  which  the  alien's  right  to  land  was  made 
by  the  statutes  to  depend,  yet  Congress  might  intrust  the  final 
determination  of  those  facts  to  an  executive  officer,  and  that,  if  it 
did  so,  his  order  was  due  process  of  law,  and  no  other  tribunal, 
unless  expressly  authorized  by  law  to  do  so,  was  at  liberty  to  re- 
examine the  evidence  on  which  he  acted,  or  to  controvert  its  suf- 
ficiency.   142  U.  S.,  660. 

The  power  to  exclude  aliens  and  the  power  to  expel  them  rest 
upon  one  foundation,  are  derived  from  one  source,  are  supported 
by  the  same  reasons,  and  are  in  truth  but  parts  of  one  and  the 
same  power. 

The  power  of  Congress,  therefore,  to  expel,  like  the  power  to 
exclude  aliens,  or  any  specified  class  of  aliens,  from  the  country, 
may  be  exercised  entirely  through  executive  officers;  or  Congress 
may  call  in  the  aid  of  the  judiciary  to  ascertain  any  contested  facts 
on  which  an  alien's  right  to  be  in  the  country  has  been  made  by 
Congress  to  depend. 

Congress,  having  the  right,  as  it  may  see  fit,  to  expel  aliens  of  a 
particular  class,  or  to  permit  them  to  remain,  has  undoubtedly  the 
right  to  provide  a  system  of  registration  and  identification  of  the 
members  of  that  class  within  the  country,  and  to  take  all  proper 
means  to  carry  out  the  system  which  it  provides.     .     .     . 

In  our  jurisprudence,  it  is  well  settled  that  the  provisions  of  an 
aot  of  Congress,  passed  in  the  exercise  of  its  constitutional  author- 
ity, on  this,  as  on  any  other  subject,  if  clear  and  explicit,  must  be 
upheld  by  the  courts,  even  in  contravention  of  express  stipulations 


FONG  YUE  TING  v.  UNITED  STATES.  601 

in  an  earlier  treaty.  As  was  said  by  this  court  in  Chae  Chan 
Ping's  Case,  following  previous  decisions:  "The  treaties  were  of 
no  greater  legal  obligation  than  tlie  act  of  Congress.  By  the  Con 
stitution,  laws  made  in  pursuance  thereof  and  treaties  made  unde; 
the  authority  of  the  United  States  are  both  declared  to  be  th' 
supreme  law  of  the  land,  and  no  paramount  authority  is  given  t( 
one  over  the  other.  A  treaty,  it  is  true,  is  in  its  nature  a  contraci 
between  nations,  and  is  often  merely  promissory  in  its  character 
requiring  legislation  to  carry  its  stipulations  into  effect.  Such 
legislation  will  be  open  to  future  repeal  or  amendment.  If  the 
treaty  operates  by  its  own  force,  and  relates  to  a  subject  within  the 
power  of  Congress,  it  can  be  deemed  in  that  particular  only  the 
equivalent  of  a  legislative  act,  to  be  repealed  or  modified  at  the 
pleasure  of  Congress.  In  either  case,  the  last  expression  of  the 
sovereign  will  must  control."  "So  far  as  a  treaty  made  by  the 
United  States  with  any  foreign  nation  can  become  the  subject 
of  judicial  cognizance  in  the  courts  of  this  country,  it  is  subject 
to  such  acts  as  Congress  may  pass  for  its  enforcement,  modifica- 
tion, or  repeal."  130  U,  S.,  600.  See  also  Foster  v.  Neilson,  2 
Pet.,  253,  314;  Edye  v.  Kobertson,  112  U.  S.,  580,  597-599;  Wliit- 
ney  v.  Kobertson,  124  U.  S.,  190. 

By  the  supplementary  act  of  October  1,  1888,  c.  1064,  it  was 
enacted,  in  section  1,  that  "from  and  after  the  passage  of  this  act, 
it  shall  be  unlawful  for  any  Chinese  laborer,  who  shall  at  any 
time  heretofore  have  been,  or  who  may  now  or  hereafter  be,  a 
resident  within  the  United  States,  and  who  shall  have  departed  or 
shall  depart  therefrom,  and  shall  not  have  returned  before  the 
passage  of  this  act,  to  return  to,  or  remain  in,  the  United  States;" 
and  in  section  2,  that  "no  certificates  of  identity,  provided  for  in 
the  fourth  and  fifth  sections  of  the  act  to  which  this  is  a  supple- 
ment, shall  hereafter  be  issued;  and  every  certificate  heretofore 
issued  in  pursuance  thereof  is  hereby  declared  void  and  of  no  effect, 
and  the  Chinese  laborer  claiming  admission  by  virtue  thereof  shall 
not  be  permitted  to  enter  the  United  States."  25  Stat.,  504. 
.  .  .  [Here  follows  a  statement  and  discussion  of  Chae  Chan 
Ping  V.  United  States,  130  U.  S.,  581.] 

By  the  law  of  nations,  doubtless,  aliens  residing  in  a  country, 
with  the  intention  of  making  it  a  permanent  place  of  abode,  ac- 
quire, in  one  sense,  a  domicil  there;  and,  while  they  are  per- 
mitted by  the  nation  to  retain  such  a  residence  and  domicil,  are 
subject  to  its  laws,  and  may  invoke  its  protection  against  other 
nations.  This  is  recognized  by  those  publicists  who,  as  has  been 
seen,  maintain  in  the  strongest  terms  the  right  of  the  nation  to 


602  CASES    ON    CONSTITUTIONAL    LAW. 

expel  any  or  all  aliens  at  its  pleasure.  Vattel,  lib.  1,  c.  19  §  213; 
1  Phillimore,  e.  18  §  321;  Mr.  Marcy,  in  Koszta's  Case,  Wharton's 
International  Law  Digest,  §  198.  See  also  Lau  Ow  Bew  v.  United 
States,  144  U.  S.,  47,  62;  Merlin,  Eepertoire  de  Jurisprudence, 
Domicile,  §  13,  quoted  in  the  case,  above  cited,  of  In  re  Adam,  1 
Moore,  P,  C,  460,  472,  473. 

Chinese  laborers,  therefore,  like  all  other  aliens  residing  in  the 
United  States  for  a  shorter  or  longer  time,  are  entitled,  so  long  as 
they  are  permitted  by  the  government  of  the  United  States  to 
remain  in  the  country,  to  the  safeguards  of  the  Constitution,  and 
to  the  protection  of  the  laws,  in  regard  to  their  rights  of  person 
and  of  property,  and  to  their  civil  and  criminal  responsibility. 
But  they  continue  to  be  aliens,  having  taken  no  steps  towards  be- 
coming citizens,  and  incapable  of  becoming  such  under  the  natural- 
ization laws;  and  therefore  remain  subject  to  the  power  of  Congress 
to  expel  them,  or  to  order  them  to  be  pemoved  and  deported  from 
the  country,  whenever  in  its  judgment  their  removal  is  necessary 
or  expedient  for  the  public  interest.     .     .     . 

The  question  whether,  and  upon  what  conditions,  these  aliens 
shall  be  permitted  to  remain  within  the  United  States  being  one 
to  be  determined  by  the  political  departments  of  the  government, 
the  judicial  department  cannot  properly  express  an  opinion  upon 
the  wisdom,  the  policy  or  the  justice  of  the  measures  enacted  by 
Congress  in  the  exercise  of  the  powers  confided  to  it  by  the  Con- 
stitution over  this  subject. 

Upon  careful  consideration  of  the  subject,  the  only  conclusion 
which  appears  to  us  to  be  consistent  with  the  principles  of  inter- 
national law,  with  the  Constitution  and  laws  of  the  United  States, 
and  with  the  previous  decisions  of  this  court,  is  that  in  each  of 
these  cases  the  judgment  of  the  Circuit  Court,  dismissing  the  writ 
of  habeas  corpus,  is  right  and  must  be  Affirmed. 

[Chief  Justice  Fuller,  Justice  Beewee,  and  Justice  Field 
rendered  dissenting  opinions.] 


XIV.    JURISDICTION  OF  THE  FEDERAL  COURTS. 


CHISHOLM,  EXECUTOE,  v.  GEOEGTA. 
2  Dallas,  419.     Decided  1793. 

[Chisholm,  executor,  brougbt  an  action  of  assumpsit  against  the 
State  of  Georgia.  Eeturn  having  been  made,  Attorney-General 
Eandolph  moved  that  unless  the  State  of  Georgia  should  cause  an 
appearance  to  be  made  in  its  behalf,  judgment  should  be  entered 
against  the  said  State  and  a  writ  of  inquiry  of  damages  be  awarded. 
When  the  case  came  before  the  court  for  consideration,  the  counsel 
for  the  State  of  Georgia  made  a  protest  in  writing  against  the 
court's  taking  jurisdiction  of  the  case,  but  declined  to  take  any  part 
in  arguing  the  question.  The  judges  delivered  their  opinions 
seriatim.  ] 

Wilson,  J.  This  is  a  case  of  uncommon  magnitude.  One  of 
the  parties  to  it  is  a  State;  certainly  respectable,  claiming  to  be 
sovereign.  The  question  to  be  determined  is,  whether  this  State, 
so  respectable,  and  whose  claim  soars  so  high,  is  amenable  to  the 
jurisdiction  of  the  Supreme  Court  of  the  United  States?  This 
question,  important  in  itself,  will  depend  on  others  more  impor- 
tant still;  and  may  perhaps  be  ultimately  resolved  into  one  no 
less  radical  than  this — "Do  the  people  of  the  United  States  form 
a  Nation?" 

A  cause  so  conspicuous  and  interesting,  should  be  carefully  and 
accurately  viewed  from  every  possible  point  of  sight.  I  shall  exam- 
ine it,  1st.  By  the  principles  of  general  jurisprudence.  2d.  By 
the  laws  and  practice  of  particular  states  and  kingdoms.  From  the 
law  of  nations  little  or  no  illustration  of  this  subject  can  be 
expected.  By  that  law  the  several  states  and  governments  spread 
over  our  globe  are  considered  as  forming  a  society,  not  a  nation. 
It  has  only  been  by  a  very  few  comprehensive  minds,  such  as  those 
of  Elizabeth  and  the  Fourth  Henry,  that  this  last  great  idea  has 
been  even  contemplated.  3dly,  and  chiefly,  I  shall  examine  the 
important  question  before  us,  by  the  constitution  of  the  United 

603 


604  CASES    ON    CONSTITUTIONAL    LAW. 

States,  and  the   legitimate  result   of   that  valuable  instrument. 

III.  I  am,  thirdly  and  chiefly,  to  examine  the  important  ques- 
tion now  before  us,  by  the  constitution  of  the  United  States,  and 
the  legitimate  result  of  that  valuable  instrument.  Under  this  view 
the  question  is  naturally  subdivided  into  two  others.  1.  Could 
the  constitution  of  the  United  States  vest  a  jurisdiction  over  the 
State  of  Georgia?  2.  Has  that  constitution  vested  such  jurisdic- 
tion in  this  court?     .     .     . 

Concerning  the  prerogative  of  kings,  and  concerning  the  sover- 
eignty of  States,  much  has  been  said  and  written;  but  little  has 
been  said  and  written  concerning  a  subject  much  more  dignified 
and  important,  the  majesty  of  the  people.  .  .  .  The  well- 
known  address  used  by  Demosthenes,  when  he  harangued  and 
animated  his  assembled  countrymen,  was,  "0  men  of  Athens." 
With  the  strictest  propriety,  therefore,  classical  and  political,  our 
national  scene  opens  with  the  most  magnificent  object  which  the 
nation  could  present.  "The  people  of  the  United  States"  are  the 
first  personages  introduced.  Who  were  those  people?  They  were 
the  citizens  of  thirteen  States,  each  of  which  had  a  separate  con- 
stitution and  government,  and  all  of  which  were  connected  to- 
gether by  articles  of  confederation.  To  the  purposes  of  public 
strength  and  felicity  that  confederacy  was  totally  inadequate.  A 
requisition  on  the  several  States  terminated  its  legislative  author- 
ity; executive  or  judicial  authority  it  had  none.  In  order,  there- 
fore, to  form  a  more  perfect  union,  to  establish  justice,  to  insure 
domestic  tranquillity,  to  provide  for  the  common  defense,  and  to 
secure  the  blessings  of  liberty,  those  people,  among  whom  v/ere 
the  people  of  Georgia,  ordained  and  established  the  present  con- 
stitution. By  that  constitution  legislative  power  is  vested,  execu- 
tive power  is  vested,  judicial  power  is  vested. 

The  question  now  fairly  opens  to  our  view,  could  the  people 
of  those  States,  among  whom  were  those  of  Georgia,  bind  those 
States,  and  Georgia  among  the  others,  by  the  legislative,  execu- 
tive, and  judicial  power  so  vested?  If  the  principles  on  which  I 
have  founded  myself  are  just  and  true,  this  question  musd:,  un- 
avoidably, receive  an  affirmative  answer.  If  those  States  were  the 
work  of  those  people,  those  people,  and  that  I  may  apply  the  case 
closely,  the  people  of  Georgia,  in  particular,  could  alter,  as  they 
pleased,  -their  former  work;  to  any  given  degree,  they  could  dimin- 
ish as  well  as  enlarge  it.  Any  or  all  of  the  former  State  powers 
they  could  extinguish  or  transfer.  The  inference  which  necessarily 
results  is,  that  the  constitution  ordained  and  established  by  those 


CHISHOLM,  EXECUTOR,  v.  GEORGIA.  605 

people,  and  still  closely  to  apply  the  ease,  in  particular  by  the 
people  of  Georgia,  could  vest  jurisdiction  or  judicial  power  over 
those  States  and  over  the  State  of  Georgia  in  particular. 

The  next  question  under  this  head,  is,  Has  the  constitution 
done  60?  Did  those  people  mean  to  exercise  this  their  undoubted 
power?  These  questions  may  be  resolved,  either  by  fair  and  con- 
clusive deductions,  or  by  direct  and  explicit  declara-tions.  In  order, 
ultimately  to  discover  whether  the  people  of  the  United  States 
intended  to  bind  those  States  by  the  judicial  power  vested  by 
the  national  constitution,  a  previous  inquiry  will  naturally  be,  did 
those  people  intend  to  bind  those  States  by  the  legislative  power 
vested  by  that  constitution?  The  articles  of  confederation,  it  is 
well  known,  did  not  operate  upon  individual  citizens;  but  oper- 
ated only  upon  States.  This  defect  was  remedied  by  the  national 
constitution,  which,  as  all  allow,  has  an  operation  on  individual 
citizens.  But  if  an  opinion,  which  some  seem  to  entertain,  be  just, 
the  defect  remedied  on  one  side  was  balanced  by  a  defect  intro- 
duced on  the  other;  for  they  seem  to  think  that  the  present  con- 
stitution operates  only  on  individual  citizens,  and  not  on  States. 
This  opinion,  however,  appears  to  be  altogether  unfounded.  When 
certain  laws  of  the  States  are  declared  to  be  '^subject  to  the  revision 
and  control  of  the  Congress,"^  it  cannot,  surely,  be  contended  that 
the  legislative  power  of  the  national  government  was  meant  to  have 
no  operation  on  the  several  States.  The  fact  uncontrovertibly 
established  in  one  instance,  proves  the  principle  in  all  other  in- 
stances to  which  the  facts  will  be  found  to  apply.  We  may  then 
infer  that  the  people  of  the  United  States  intended  to  bind  the 
several  States  by  the  legislative  power  of  the  national  govern- 
ment. 

In  order  to  make  the  discovery,  at  which  we  ultimately  aim,  a 
second  previous  inquiry  will  naturally  be.  Did  the  people  of  the 
United  States  intend  to  bind  the  several  States  by  the  executive 
power  of  the  national  government?  The  affirmative  answer  to  the 
former  question  directs,  unavoidably,  an  affirmative  answer  to  this. 
Ever  since  the  time  of  Bracton,  his  maxim,  I  believe,  has  been 
deemed  a  good  one — ^' Stipervacuum  esset  leges  condere,  nisi  esset 
qui  leges  tueretur.  "^  "It  would  be  superfluous  to  make  laws,  unless 
those  laws,  when  made,  were  to  be  enforced."  When  the  laws 
are  plain,  and  the  application  of  them  is  uncontroverted,  they  are 
enforced  immediately  by  the  executive  authority  of  government. 
When  the  application  of  them  is  doubtful  or  intricate,  the  inter- 

1  Art.  1,  s.  10.  2  1  Brae,  107. 


606  CASES    ON    CONSTITUTIONAL    LAW. 

position  of  the  judicial  authority  becomes  necessary.  The  same 
principle,  therefore,  which  directed  us  from  the  first  to  the  second 
step,  will  direct  us  to  the  third  and  last  step  of  our  deduction. 
Fair  and  conclusive  deduction,  then,  evinces  that  the  people  of 
the  United  States  did  vest  this  court  with  jurisdiction  over  the 
State  of  Georgia.  The  same  truth  may  be  deduced  from  the 
declared  objects  and  the  general  texture  of  the  constitution  of 
the  United  States.  One  of  its  declared  objects  is,  to  form  a  union 
more  perfect  than,  before  that  time,  had  been  formed.  Before 
that  time  the  Union  possessed  legislative,  but  unenforced  legisla- 
tive power  over  the  States.  Xothing  could  be  more  natural  than 
to  intend  that  this  legislative  power  should  be  enforced  by  powers 
executive  and  judicial.  Another  declared  object  is  "to  establish 
justice."  This  points,  in  a  particular  manner,  to  the  judicial  au- 
thority. And  when  we  view  this  object  in  conjunction  with  the 
declaration,  "that  no  State  shall  pass  a  law  impairing  the  obliga- 
tion of  contracts,"  we  shall  probably  think  that  this  object  points, 
in  a  particular  manner,  to  the  jurisdiction  of  the  court  over  the 
several  States.  What  good  purpose  could  this  constitutional  pro- 
vision secure  if  a  State  might  pass  a  law  impairing  the  obligation 
of  its  own  contracts,  and  be  amenable,  for  such  a  violation  of  right, 
to  no  controlling  judiciary  power?  We  have  seen,  that  on  princi- 
ples of  general  jurisprudence,  a  State,  for  the  breach  of  a  con- 
tract, may  be  liable  for  damages.  A  third  declared  object  is,  "to 
insure  domestic  tranquillity."  This  tranquillity  is  most  likely  to 
be  disturbed  by  controversies  between  States.  These  consequences 
will  be  most  peaceably  and  effectually  decided  by  the  establishment 
and  by  the  exercise  of  a  superintending  judicial  authority.  By 
such  exercise  and  establishment,  the  law  of  nations — the  rule  be- 
tween contending  States — will  be  enforced  among  the  several 
States  in  the  same  manner  as  municipal  law. 

Whoever  considers,  in  a  combined  and  comprehensive  view,  the 
general  texture  of  the  constitution,  will  be  satisfied  that  the  people 
of  the  United  States  intended  to  form  themselves  into  a  nation 
for  national  purposes.  They  instituted,  for  such  purposes,  a  na- 
tional government  complete  in  all  its  parts,  with  powers  legisla- 
tive, executive  and  judiciary;  and  in  all  those  powers  extending 
over  the  whole  nation.  Is  it  congruous  that,  with  regard  to 
such  purposes,  any  man  or  body  of  men,  any  person,  natural  or 
artificial,  should  be  permitted  to  claim  successfully  an  entire  ex- 
emption from  the  jurisdiction  of  the  national  government?  Would 
not  such  claims,  crowned  with  success,  be  repugnant  to  our  very 
existence  as  a  nation?    When  so  many  trains  of  deduction,  coming 


CHISHOLM,  EXECUTOR,  v.  GEORGIA.  607 

from  different  quarters,  converge  and  unite  at  last  in  the  same 
point,  we  may  safely  conclude,  as  the  legitimate  result  of  this  con- 
stitution, that  the  State  of  Georgia  is  amenable  to  the  jurisdic- 
tion of  this  court. 

But,  in  my  opinion,  this  doctrine  rests  not  upon  the  legitimate 
result  of  fair  and  conclusive  deduction  from  the  constitution;  it 
is  confirmed,  beyond  all  doubt,  by  the  direct  and  explicit  declara- 
tion of  the  constitution  itself.  "The  judicial  power  of  the  United 
States  shall  extend  to  controversies  between  two  States."^  Two 
States  are  supposed  to  have  a  controversy  between  them;  this 
controversy  is  supposed  to  be  brought  before  those  vested  with 
the  judicial  power  of  the  United  States;  can  the  most  consum- 
mate degree  of  professional  ingenuity  devise  a  mode  by  which 
this  "controversy  between  two  States"  can  be  brought  before  a 
court  of  law,  and  yet  neither  of  those  States  be  a  defendant?  "The 
judicial  power  of  the  United  States  shall  extend  to  controversies 
between  a  State  and  citizens  of  another  State."  Could  the  strictest 
legal  language;  could  even  that  language  which  is  peculiarly 
appropriated  to  an  act,  deemed  by  a  great  master  to  be  one  of 
the  most  honorable,  laudable,  and  profitable  things  in  our  law; 
could  this  strict  and  appropriated  language  describe  with  more 
precise  accuracy  the  cause  now  depending  before  the  tribunal? 
Causes,  and  not  parties  to  causes,  are  weighed  by  justice  in  her 
equal  scales;  on  the  former,  solely,  her  attention  is  fixed;  to  the 
latter  she  is,  as  she  is  painted,  blind. 

I  have  now  tried  this  question  by  all  the  touchstones  to  which 
I  proposed  to  apply  it.  I  have  examined  it  by  the  principles  of 
general  jurisprudence;  by  the  laws  and  practice  of  States  and 
kingdoms;  and  by  the  constitution  of  the  United  States.  From 
all,  the  combined  inference  is,  that  the  action  lies. 

Gushing,  J.  The  grand  and  principal  question,  in  this 
case,  is  whether  a  State  can,  by  the  federal  constitution,  be 
sued  by  an  individual  citizen  of  another  State.  The  point  turns 
not  upon  the  law  or  practice  of  England,  although  perhaps  it  may 
be  in  some  measure  elucidated  thereby,  nor  upon  the  law  of  any 
other  country  whatever;  but  upon  the  constitution  established  by 
the  people  of  the  United  States;  and  particularly  upon  the  extent 
of  powers  given  to  the  federal  judiciary  in  the  2d  section  of  the  3d 
article  of  the  constitution.  It  is  declared  that  "the  judicial  power 
shall  extend  to  all  cases  in  law  and  equity  arising  under  the  con- 
stitution, the  laws  of  the  United  States,  or  treaties  made  or  which 
shall  be  made  under  their  authority:  to  all  cases  affecting  ambassa- 

lArt.  3,  s.  2. 


608  CASES    ON    CONSTITUTIONAL    LAW. 

dors  or  other  public  ministers  and  consuls;  to  all  cases  of  ad- 
miralty and  maritime  jurisdiction;  to  controversies  to  which  the 
United  States  shall  be  a  party;  to  controversies  between  two  or 
more  States,  and  citizens  of  another  State;  between  citizens  of  dif- 
ferent States;  between  citizens  of  the  same  States  claiming  lands 
under  grants  of  different  State's;  and  between  a  State  and  citizens 
thereof  and  foreign  States,  citizens  or  subjects."  The  judicial 
power,  then,  is  expressly  extended  to  "controversies  between  a  State 
and  citizens  of  another  State."  When  a  citizen  makes  a  demand 
against  a  State  of  which  he  is  not  a  citizen,  it  is  as  really  a  con- 
troversy between  a  State  and  a  citizen  of  another  State,  as  if  such 
State  made  a  demand  against  such  citizen.  The  case  then  seems 
clearly  to  fall  within  the  letter  of  the  constitution.  It  may  be 
suggested  that  it  could  not  be  intended  to  subject  a  State  to  be 
a  defendant,  because  it  would  affect  the  sovereignty  of  States.  If 
that  be  the  case,  what  shall  we  do  with  the  immediate  preceding 
clause:  "controversies  between  two  or  more  States,"  where  a  State 
must  of  necessity  be  a  defendant?  If  it  was  not  the  intent,  in  the 
very  next  clause  also,  that  a  State  might  be  made  defendant,  why 
was  it  so  expressed  as  naturally  to  lead  to  and  comprehend  that 
idea?    Why  was  not  an  exception  made  if  one  was  intended? 

Again,  what  are  we  to  do  with  the  last  clause  of  the  section  of 
judicial  powers,  namely,  "controversies  between  a  State  or  the  citi- 
zens thereof  and  foreign  States  or  citizens"?  Here,  again.  States 
must  be  suable  or  liable  to  be  made  defendants  by  this  clause, 
which  has  a  similar  mode  of  language  with  the  two  other  clauses 
I  have  remarked  upon.  For  if  the  judicial  power  extends  to  a 
controversy  between  one  of  the  United  States  and  a  foreign  State, 
as  the  clause  expresses,  one  of  them  must  be  defendant.  And  then 
what  becomes  of  sovereignty  of  States,  as  far  as  suing  aifects  it? 
But  although  the  words  appear  reciprocally  to  affect  the  State 
here  and  a  foreign  State,  and  put  them  on  the  same  footing  as  far 
as  may  be,  yet  ingenuity  may  say  that  the  State  here  may  sue, 
but  cannot  be  sued;  but  that  the  foreign  State  may  be  sued,  but 
cannot  sue.  We  may  touch  foreign  sovereignties,  but  not  our  own. 
But  I  conceive  the  reason  of  the  thing  as  well  as  the  words  of 
the  constitution,  tend  to  show  that  the  federal  judicial  power 
extends  to  a  suit  brought  by  a  foreign  State,  against  any  one  of  the 
United  States.  One  design  of  the  general  government  was  for 
managing  the  great  affairs  of  peace  and  war,  and  the  general  de- 
fense, which  were  impossible  to  be  conducted  by  the  States  sep- 
arately. Incident  to  these  powers,  and  for  preventing  controversies 
between  foreign  powers,  or  citizens  from  rising  to  extremities  and 


CHISHOLM,  EXECUTOR,  v.  GEORGIA.  609 

to  an  appeal  to  the  sword,  a  national  tribunal  was  necessary,  amic- 
ably, to  decide  them,  and  thus  ward  off  such  fatal  public  calamity. 
Thus  States  at  home  and  their  citizens,  and  foreign  States  and  their 
citizens,  are  put  together  without  distinotion  upon  the  same  footing, 
as  far  as  may  be,  as  to  controversies  between  them.  So  also  with 
respect  to  controversies  between  a  State  and  citizens  of  another 
State  at  home,  comparing  all  the  clauses  together  the  remedy  is  re- 
ciprocal; the  claim  to  justice  equal.  As  controversies  between  State 
and  State,  and  between  a  State  and  citizens  of  another  State 
might  tend  gradually  to  involve  States  in  war  and  bloodshed,  a 
disinterested  civil  tribunal  was  intended  to  be  instituted  to  decide 
such  controversies,  and  preserve  peace  and  friendship.  Further: 
if  a  State  is  entitled  to  justice  in  the  federal  court,  against  a  cit- 
izen of  another  State,  why  not  such  citizen  against  the  State, 
when  the  same  language  equally  comprehends  both?  The  rights 
of  individuals  and  the  justice  due  to  them  are  as  dear  and  pre- 
cious as  those  of  States.  Indeed  the  latter  are  founded  upon 
the  former,  and  the  great  end  and  object  of  them  must  be  to  secure 
and  support  the  rights  of  individuals,  or  else  vain  is  government. 
But  still  it  may  be  insisted  that  this  will  reduce  States  to  mere 
corporations,  and  take  away  all  sovereignty.  As  to  corporations, 
all  States  whatever  are  corporations  or  bodies  politic.  The  only 
question  is,  what  are  their  powers?  As  to  individual  States  and 
the  United  States,  the  constitution  marks  the  boundary  of  powers. 
Whatever  power  is  deposited  with  the  Union  by  the  people  for 
their  own  necessary  security,  is  so  far  a  curtailing  of  the  power  and 
prerogatives  of  the  States.  This  is,  as  it  were,  a  self-evident  prop- 
osition; at  least  it  cannot  be  contested.  Thus  the  power  of  de- 
claring war,  making  peace,  raising  and  supporting  armies  for  public 
defense,  levying  duties,  excises,  and  taxes,  if  necessary,  with  many 
other  powers,  are  lodged  in  Congress,  and  are  a  most  essential 
abridgement  of  State  sovereignty.  Again,  the  restrictions  upon 
the  States.  "No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation,  coin  money,  emit  bills  of  credit,  make  anything  but 
gold  and  silver  a  tender  in  payment  of  debts,  pass  any  law  impair- 
ing the  obligation  of  contracts;  these,  with  a  number  of  others, 
are  important  restrictions  of  the  power  of  States,  and  were  thought 
necessary  to  maintain  the  Union,  and  to  establish  some  funda- 
mental uniform  principles  of  public  justice  throughout  the  whole 
Union.  So  that  I  think  no  argument  of  force  can  be  taken  from 
•the  sovereignty  of  States.  Where  it  has  been  abridged,  it  was 
thought  necessary  for  the  greater  indispensable  good  of  the  whole. 
If  the  constitution  is  found  inconvenient  in  practice  in  this  or 
39 


610  CASES  ON   CONSTITUTIONAL   LAW. 

any  other  particular,  it  is  well  that  a  regular  mode  is  pointed 
out  for  amendment.  But  while  it  remains,  all  offices,  legislative, 
executive,  and  judicial,  both  of  the  States  and  of  the  Union,  are 
bound  by  oath  to  support  it. 

One  other  objection  has  been  suggested;  that  if  a  State  may  be 
sued  by  a  citizen  of  another  State,  then  the  United  States  may 
be  sued  by  a  citizen  of  any  one  of  the  States,  or,  in  other  words, 
by  any  of  their  citizens.  If  this  be  a  necessary  consequence,  it 
must  be  so.  I  doubt  the  consequence  from  the  different  word- 
ing of  the  different  clauses,  connected  with  other  reasons.  AMien 
speaking  of  the  United  States,  the  constitution  says,  "controversies 
to  which  the  United  States  shall  be  a  party,"  not  controversies 
between  t:he  United  States  and  any  of  their  citizens.  When  speak- 
ing of  States,  it  says,  "controversies  between  two  or  more  States, 
between  a  State  and  citizens  of  another  State."  As  to  reasons  for 
citizens  suing  a  different  State  which  do  not  hold  equally  good 
for  suing  the  United  States,  one  may  be,  that  as  controversies 
between  a  State  and  citizens  of  another  State  might  have  a  ten- 
dency to  involve  both  States  in  contest,  and  perhaps  in  war,  a 
common  umpire  to  decide  such  controversies  may  have  a  tendency 
to  prevent  the  mischief.  That  an  object  of  this  kind  was  had 
in  view  by  the  framers  of  the  constitution,  I  have  no  doubt,  when 
I  consider  the  clashing  interfering  laws  which  were  made  in  the 
neighboring  States  before  the  adoption  of  the  constitution,  and 
some  affecting  the  property  of  citizens  of  another  State  in  a  verj- 
different  manner  from  that  of  their  own  citizens.  But  I  do  not 
think  it  necessarj-  to  enter  fully  into  the  question,  whether  the 
Un-ited  States  are  liable  to  be  sued  by  an  individual  citizen,  in 
order  to  decide  the  point  before  us.  Upon  the  whole,  I  am  of 
opinion  that  the  constitution  warrants  a  surt  against  a  State  by 
an  individual  citizen  of  another  State.     .     .     . 

Jay,  C.  J.  .  .  .  Let  us  now  proceed  to  inquire  whether 
Georgia  has  not,  by  being  a  party  to  the  national  com- 
pact, consented  to  be  suable  by  individual  citizens  of  another 
State.  This  inquiry  naturally  leads  our  attention,  1st.  To  the 
design  of  the  constitution.  2d.  To  the  letter  and  express  declara- 
tion in  it. 

Prior  to  the  date  of  the  constitution,  the  people  had  not  any  na- 
tional tribunal  to  which  they  could  resort  for  justice;  the  dis- 
tribution of  justice  was  then  confined  to  State  judicatories,  in 
whose  institution  and  organization  the  people  of  the  other  States 
had  no  participation,  and  over  whom  they  had  not  the  least  con- 


CHISHOLM,  EXECUTOR,  v.  GEORGIA.  611 

trol.  There  was  then  no  general  court  of  appellate  jurisdiction 
by  whom  the  errors  of  State  courts,  affecting  either  the  nation  at 
large  or  the  citizens  of  any  other  State,  could  be  revised  and 
corrected.  Each  State  was  obliged  to  acquiesce  in  the  measure  of 
justice  which  another  State  might  yield  to  her  or  to  her  citizens; 
and  that  even  in  cases  where  State  considerations  were  not  al- 
ways favorable  to  the  most  exact  measure.  There  was  danger 
that  from  this  source  animosities  would  in  time  result;  and  as  the 
transition  from  animosities  to  hostilities  was  frequent  in  the  his- 
tory of  independent  States,  a  common  tribunal  for  the  termina- 
tion of  controversies  became  desirable,  from  motives  both  of  jus- 
tice and  of  policy. 

Prior  also  to  that  period  the  United  States  had,  by  taking  a 
place  among  the  nations  of  the  earth,  become  amenable  to  the 
laws  of  nations,  and  it  was  their  interest  as  well  as  their  duty 
to  provide  that  those  laws  should  be  respected  and  obeyed;  in 
their  national  character  and  capacity  the  United  States  were  re- 
sponsible to  foreign  nations  for  the  conduct  of  each  State,  relative 
to  the  laws  of  nations,  and  the  performance  of  treaties;  and  there 
the  inexpediency  of  referring  all  such  questions  to  Staite  courts, 
and  particularly  to  the  caurts  of  delinquent  States,  became  appar- 
ent. While  all  the  States  were  bound  to  protect  each  and  the 
citizens  of  each,  it  was  highly  proper  and  reasonable  that  they 
should  be  in  a  capacity  not  only  to  cause  justice  to  be  done  to 
each,  and  the  citizens  of  each,  but  also  to  cause  justice  to  be  done 
by  each,  and  the  citizens  of  each,  and  that,  not  by  violence  and 
force,  but  in  a  stable,  sedate,  and  regular  course  of  judicial  pro- 
cedure. 

These  were  among  the  evils  against  which  it  was  proper  for  the 
nation,  that  is,  the  people  of  all  the  United  States,  to  provide 
by  a  national  judiciary,  to  be  instituted  by  the  whole  nation, 
and  to  be  responsible  to  the  whole  nation. 

Let  us  now  turn  to  the  constitution.  The  people  therein  declare 
that  their  design  in  establishing  it  comprehended  six  objects.  1st. 
To  form  a  more  perfect  union.  2d.  To  establish  justice.  3d. 
To  insure  domestic  tranquillity.  4th.  To  provide  for  the  com- 
mon defense.  5th.  To  promote  the  general  welfare.  6th.  To 
secure  the  blessings  of  liberty  to  themselves  and  their  posterity. 

It  may  be  asked,  what  is  the  precise  sense  and  latitude  in  which 
the  words  "to  establish  justice,"  as  here  used,  are  to  be  under- 
stood? The  answer  to  this  question  will  result  from  the  provi- 
sions made  in  the  constitution  on  this  head.     They  are  specified 


613  CASES  ON  CONSTITUTIONAL  LAW. 

in  the  second  section  of  the  third  article,  where  it  is  ordained 
that  the  judicial  power  of  the  United  States  shall  extend  to  ten 
descriptions  of  cases,  namely:  1st.  To  all  cases  arising  under  this 
constitution;  because  the  meaning,  construction,  and  operation  of 
a  compact  ought  always  to  be  ascertained  by  all  the  parties,  or  by 
authority  derived  only  from  one  of  them.  2d.  To  all  cases  arising 
under  the  laws  of  the  United  States;  because  as  such  laws,  con- 
stitutionally made,  are  obligatory  on  each  State,  the  measure  of 
obligation  and  obedience  ought  not  to  be  decided  and  fixed  by  the 
party  from  whom  they  are  due,  but  by  a  tribunal  deriving  author- 
ity from  both  the  parties.  3d.  To  all  cases  arising  under  treaties 
made  by  their  authority;  because,  as  treaties  are  compacts  made 
by,  and  obligatory  on  the  whole  nation,  their  operation  ought  not 
to  be  affected  or  regulated  by  the  local  laws  or  courts  of  a  part 
of  the  nation.  4th.  To  all  cases  affecting  ambassadors,  or  other 
public  ministers  and  consuls;  because,  as  these  are  officers  of 
foreign  nations,  whom  this  nation  are  bound  to  protect  and  treat 
according  to  the  laws  of  nations,  cases  affecting  them  ought  only 
to  be  cognizable  by  national  authority.  5th.  To  all  cases  of 
admiralty  and  maritime  jurisdiction;  because,  as  the  seas  are 
the  joint  property  of  nations,  whose  right  and  privileges  relative 
thereto  are  regulated  by  the  laws  of  nations  and  treaties,  such  cases 
necessarily  belong  to  national  jurisdiction.  6th.  To  controversies 
to  which  the  United  States  shall  be  a  party;  because,  in  cases 
in  which  the  whole  people  are  interested  it  would  not  be  equal 
or  wise  to  let  any  one  State  decide  and  measure  out  the  justice 
due  to  others.  7th.  To  controversies  between  two  or  more  States; 
because  domestic  tranquillity  requires  that  the  contentions  of 
States  should  be  peaceably  terminated  by  a  common  judicator}'; 
and,  because,  in  a  free  country,  justice  ought  not  to  depend  on 
the  will  of  either  of  the  litigants.  8th.  To  controversies  between 
a  State  and  citizens  of  another  State;  because,  in  case  a  State  (that 
is,  all  the  citizens  of  it)  has  demands  against  some  citizens  of 
another  State,  it  is  better  that  she  should  prosecute  their  demands 
in  a  national  court,  than  in  a  court  of  the  State  to  which  those 
citizens  belong;  the  danger  of  irritation  and  criminations  arising 
from  apprehensions  and  suspicions  of  partiality  being  thereby  ob- 
viated; because,  in  cases  where  some  citizens  of  one  State  have 
demands  against  all  the  citizens  of  another  State,  the  cause  of 
liberty  and  the  rights  of  men  forbid  that  the  latter  should  be 
the  sole  judges  of  the  justice  due  to  the  latter;  and  true  repub- 
lican government  requires  that  free  and  equal  citizens  should  have 
free,  fair,  and  equal  justice.     9th.  To  controversies  between  eiti- 


CHISHOLM.  EXECUTOR,  v.  GEORGIA.  613 

zens  of  the  same  State,  claiming  lands  under  grants  of  different 
States;  because,  as  the  rights  of  the  two  States  to  grant  the  land 
are  drawn  into  question,  neither  of  the  two  States  ought  to  decide 
the  question.  10th.  To  controversies  between  a  State  or  the  cit- 
izens thereof  and  foreign  States,  citizens  or  subjects;  because,  as 
every  nation  is  responsible  for  the  conduct  of  its  citizens  towards 
other  nations,  all  questions  touching  the  justice  due  to  foreign 
nations,  or  people,  ought  to  be  ascertained  by,  and  depend  on, 
national  authority.  Even  this  cursory  view  of  the  judicial  powers 
of  the  United  Staties  leaves  the  mind  strongly  impressed  with  the 
importance  of  them  to  the  preservation  of  the  tranquillity,  the 
equal  sovereignty,  and  the  equal  right  of  the  people. 

The  question  now  before  us  renders  it  necessary  to  pay  particular 
aittention  to  that  part  of  the  second  section  which  extends  the 
judicial  power  "to  controversies  between  a  State  and  citizens  of 
another  State."  It  is  contended  that  this  ought  to  be  construed 
to  reach  none  of  these  controversies,  excepting  those  in  which 
a  State  may  be  plaintiff.  The  ordinary  rules  for  construction 
will  easily  decide  whether  those  words  are  to  be  understood  in  that 
limited  sense. 

This  extension  of  power  is  remedied,  because  it  is  to  settle  con- 
troversies. It  is,  therefore,  to  be  construed  liberally.  It  is  politic, 
wise,  and  good,  that  not  only  the  controversies  in  which  a  State  is 
plaintiff,  but  also  those  in  which  a  State  is  defendant,  should  be 
settled;  both  cases,  therefore,  are  within  the  reason  of  the  remedy; 
and  ought  to  be  so  adjudged,  unless  the  obvious,  plain,  and  lit- 
eral sense  of  the  words  forbid  it.  If  we  attend  to  the  words,  we 
find  them  to  be  express,  positive,  free  from  ambiguity,  and  with- 
out room  for  such  implied  expressions:  "The  judicial  power  of 
the  United  States  shall  extend  to  controversies  between  a  State 
and  citizens  of  another  State."  If  the  constitution  really  meant 
to  extend  these  powers  only  to  those  controversies  in  which  a  State 
might  be  plaintiff,  to  the  exclusion  of  those  in  which  citizens  had 
demands  against  a  State,  it  is  inconceivable  that  it  should  have 
attempted  to  convey  that  meaning  in  words  not  only  so  incom- 
petent, but  also  repugnant  to  it;  if  it  meant  to  exclude  a  certain 
class  of  these  controversies,  why  were  they  not  expressly  excepted; 
on  the  contrary,  not  even  an  intimation  of  such  intention  appears 
in  any  part  of  the  constitution.  It  cannot  be  pretended  that  where 
citizens  urge  and  insist  upon  demands  against  a  State,  which  the 
State  refuses  to  admit  and  comply  with,  that  there  is  no  contro- 
versy between  them.  If  it  is  a  controversy  between  them,  then 
it  clearly  falls  not  only  within  the  spirit,  but  the  very  words  of  the 


614  CASES  ON   CONSTITUTIONAL  LAW. 

constitution.  What  is  it  to  the  cause  of  justice,  and  how  can  it 
affect  the  definition  of  the  word  controversy,  whether  the  demands 
which  cause  the  dispute  are  made  by  a  State  against  citizens  of 
another  State,  or  hy  the  latter  against  the  former?  "WTien  power 
is  thus  extended  to  a  controversy,  it  necessarily,  as  to  all  judicial 
purposes,  is  also  extended  to   those  between  whom  it  subsists. 

We  find  the  same  general  and  comprehensive  manner  of  express- 
ing the  same  ideas  in  a  subsequent  clause,  in  which  the  constitu- 
tion ordains  that  "in  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  State  shall  be  a  party, 
the  supreme  court  shall  have  original  jurisdiction."  Did  it  mean 
here  party  plaintiff?  If  that  only  was  meant,  it  would  have  been 
easy  to  have  found  words  to  express  it.  Words  are  to  be  under- 
stood in  their  ordinary  and  common  acceptation,  and  the  word 
party  being  in  common  usage  applicable  both  to  plaintiff  and  de- 
fendant, we  cannot  limit  it  to  one  of  them  in  the  present  case.  We 
find  the  legislature  of  the  United  States  expressing  themselves  in 
the  like  general  and  comprehensive  manner;  they  speak,  in  the 
thirteenth  section  of  the  judicial  act,  of  controversies  where  a  State 
is  a  party,  and  as  they  do  not  impliedly  or  expressly  apply  that 
term  to  either  of  the  litigants  in  particular,  we  are  to  understand 
them  as  speaking  of  both.  In  the  same  section  they  distinguish 
the  cases  where  ambassadors  are  plaintiffs,  from  those  in  which 
ambassadors  are  defendants,  and  make  different  provisions  respect- 
ing those  cases;  and  it  is  not  unnatural  to  suppose  that  they  would, 
in  like  manner,  have  distinguished  between  cases  where  a  State 
was  plaintiff  and  where  a  State  was  defendant,  if  they  had  in- 
tended to  make  any  difference  between  them,  or  if  they  had  appre- 
hended that  the  constitution  had  made  any  difference  between 
them. 

I  perceive,  and  therefore  candor  urges  me  to  mention,  a  circum- 
stance, which  seems  to  favor  the  opposite  side  of  the  question.  It  is 
this:  The  same  section  of  the  constitution  which  extends  the  judi- 
cial power  to  controversies  "between  a  State  and  the  citizens  of  an- 
other State,"  does  also  extend  that  power  to  controversies  to  which 
the  United  States  are  a  party.  Now  it  may  be  said,  if  the  word 
party  comprehends  both  plaintiff  and  defendant,  it  follows  that 
the  United  States  may  be  sued  by  any  citizen,  between  whom  and 
them  there  may  be  a  controversy.  This  appears  to  me  to  be  fair 
reasoning;  but  the  same  principles  of  candor  which  urge  me  to 
mention  this  objection,  also  urge  me  to  suggest  an  important  differ- 


CHTSHOLM,  EXECUTOR,  v.  GEORGIA.  615 

ence  between  the  two  cases.  It  is  this:  In  all  cases  of  actions 
against  States  or  individual  citizens  the  national  courts  are  sup- 
ported in  all  their  legal  and  constitutional  proceedings  and  judg- 
ments by  the  arm  of  the  executive  power  of  the  United  States; 
but  in  cases  of  actions  against  the  United  States,  there  is  no  power 
Avhich  the  courts  can  call  to  their  aid.  From  this  distinction  im- 
portant conclusions  are  deducible,  and  they  place  the  case  of  a 
State,  and  the  case  of  the  United  States,  in  very  different  points 
of  view.     .     ,     . 

For  the  reasons  before  given,  I  am  clearly  of  opinion  that  a  State 
is  suable  by  citizens  of  another  State;  but  lest  I  should  be  under- 
stood in  a  latitude  beyond  by  meaning,  I  think  it  necessary  to  sub- 
join this  caution,  namely.  That  such  suability  may  nevertheless 
not  extend  to  all  the  demands,  and  to  every  kind  of  action;  there 
may  be  exceptions.  For  instance,  I  am  far  from  being  prepared 
to  say  that  an  individual  may  sue  a  State  on  bills  of  credit  issued 
before  the  constitution  was  established,  and  which  were  issued  and 
received  on  the  faith  of  the  State,  and  at  a  time  when  no  ideas 
or  expectations  of  judicial  interposition  were  entertained  or  con- 
templated.    ,     .     . 

[Justice  Ieedell  delivered  a  dissenting  opinion.  Justice 
Blaik  rendered  a  concurring  oj^inion.] 

Note. — "The  question,  in  short,  was,  whetherthe  Constitution  was 
a  bond  of  national  unity,  or  such  federal  league  only  as  would  be  dis- 
soluble at  the  pleasure  of  any  party  to  it.  .  .  .  Justice  Wilson, 
the  ablest  and  most  learned  of  the  associates,  took  the  national 
view  and  was  supported  by  two  others.  The  Chief  Justice  was 
thus  enabled  to  declare  as  the  opinion  of  the  court,  that  under 
the  Constitution  of  the  United  States,  sovereignty  belonged  to  the 
people  of  the  United  States.  .  .  .  The  doctrine  of  an  indis- 
soluble Union,  though  not  in  terms  declared,  is  nevertheless  in 
its  elements  at  least  contained  in  the  decision.  The  qualified  sov- 
ereignty, national  and  State,  the  subordination  of  State  to  nation, 
the  position  of  the  citizen  as  at  once  a  necessary  component  part  of 
the  federal  and  of  the  State  system,  are  all  exhibited.  It  must 
logically  follow  that  a  nation  as  a  sovereignty  is  possessed  of  all 
those  powers  of  independent  action  and  self-protection  which  the 
successors  of  Jay  subsequently  demonstrated  were  by  implication 
conferred  upon  it."  Cooley  in  Constitutional  History  as  seen  in 
American  Law,  48,  49. 

"It  is  not  rational  to  suppose  that  a  sovereign  power  shall  be 
dragged  before  a  court.    The  intent  is  to  enable  States  to  recover 


616  CASES  ON   CONSTITUTIONAL  LAW. 

claims  of  individuals  residing  in  other  States."  John  Marshall 
in  the  Virginia  Convention  of  1787,  Elliot's  Debates,  III,  555.  A 
similar  opinion  is  expressed  by  Hamilton  in  The  Federalist,  No.  81. 

"The  decision  was  pronounced  on  the  18th  of  February,  1793; 
two  days  afterward  the  Eleventh  Amendment  to  the  Constitution 
was  proposed  to  Congress."  Carson,  The  Supreme  Court  of  the 
United  States,  177. 

For  an  adverse  criticism  of  the  judgment  rendered  in  this  case, 
see  the  opinion  of  the  court  in  Hans  v.  Louisiana,  134  U.  S.,  1. 


MAETIN,  Heik  at  Law  and  Devisee  of  Fairfax,  v. 
HUNTEE'S    LESSEE. 

1  Wheaton,  304.    Decided  1816. 
This  case  is  fully  stated  in  the  opinion  of  the  court.     .     .     . 

Story,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  from  the  court  of  appeals  of  Virginia, 
founded  upon  the  refusal  of  that  court  to  obey  the  mandate  of  this 
court,  requiring  the  judgment  rendered  in  this  very  cause,  at 
February  term,  1813,  to  be  carried  into  due  execution.  The  fol- 
lowing is  the  judgment  of  the  court  of  appeals  rendered  on  the 
mandate:  "The  court  is  unanimously  of  opinion,  that  the  appel- 
late power  of  the  supreme  court  of  the  United  States  does  not 
extend  to  this  court,  under  a  sound  construction  of  the  constitution 
of  the  L^'nited  States;  that  so  much  of  the  25th  section  of  the  act 
of  congress  to  establish  the  judicial  courts  of  the  United  States, 
as  extends  the  appellate  jurisdiction  of  the  supreme  court  to  this 
court,  is  not  in  pursuance  of  the  constitution  of  the  United  States; 
that  the  writ  of  error  in  this  cause  was  improvidently  allowed  under 
the  authority  of  that  act;  that  the  proceedings  thereon  in  the 
supreme  court  were  coram  non  judice,  in  relation  to  this  court,  and 
that  obedience  to  its  mandate  be  declined  by  the  court."     .     .     . 

Before  proceeding  to  the  principal  questions,  it  may  not  be  unfit 
to  dispose  of  some  preliminary  considerations  which  have  grown 
out  of  the  arguments  at  the  bar. 

The  constitution  of  the  LTnited  States  was  ordained  and  estab- 
lished, not  by  the  States  in  their  sovereign  capacities,  but  emphat- 
ically, as  the  preamble  of  the  constitution  declares,  by  "the  people 
of  the  United  States."    There  can  be  no  doubt  that  it  was  com- 


MARTIN  V.  HUNTER'S  LESSEE.  617 

petent  to  the  people  to  invest  the  general  government  with  all  the 
powers  which  they  might  deem  proper  and  necessary;  to  extend 
or  restrain  these  powers  according  to  their  own  good  pleasure,  anr 
to  give  them  a  paramount  and  supreme  authority.  As  little  doub' 
can  there  be,  that  the  people  had  a  right  to  prohibit  to  the  State; 
the  exercise  of  any  powers  which  were,  in  their  judgment,  incom- 
patible with  the  objects  of  the  general  compact;  to  make  th'. 
powers  of  the  state  governments,  in  given  cases,  subordinate  tc 
those  of  the  nation,  or  to  reserve  to  themselves  those  sovereigr 
authorities  which  they  might  not  choose  to  delegate  to  either.  The 
constitution  was  not,  therefore,  necessarily  carved  out  of  existing 
state  sovereignties,  nor  a  surrender  of  powers  already  existing  in 
state  institutions,  for  the  powers  of  the  States  depend  upon  their 
own  constitutions;  and  the  people  of  every  State  had  the  right  to 
modify  and  restrain  them,  according  to  their  own  views  of  policy 
or  principle.  On  the  other  hand  it  is  perfectly  clear  that  the  sov- 
ereign powers  vested  in  the  state  governments,  by  their  respective 
constitutions,  remained  unaltered  and  unimpaired,  except  so  far  as 
they  were  granted  to  the  government  of  the  United  States. 

These  deductions  do  not  rest  upon  general  reasoning,  plain  and 
obvious  as  they  seem  to  be.  They  have  been  positively  recognized 
by  one  of  the  articles  in  amendment  of  the  constitution,  which 
declares  that  "the  powers  not  delegated  to  the  United  States  by 
the  constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people." 

The  government,  then,  of  the  United  States,  can  claim  no 
powers  which  are  not  granted  to  it  by  the  constitution,  and  the 
powers  actually  granted  must  be  such  as  are  expressly  given,  or 
given  by  necessary  implication.  On  the  other  hand,  this  instru- 
ment, like  every  other  grant,  is  to  have  a  reasonable  construction, 
according  to  the  import  of  its  terms;  and  where  a  power  is  ex- 
pressly given  in  general  terms,  it  is  not  to  be  restrained  to  par- 
ticular cases,  unless  thait  construction  grows  out  of  the  context 
expressly,  or  by  necessary  implication.  The  words  are  to  be  taken 
in  their  natural  and  obvious  sense,  and  not  in  a  sense  unreasonably 
restricted  or  enlarged. 

The  constitution,  unavoidably,  deals  in  general  language.  It  did 
not  suit  the  purposes  of  the  people,  in  framing  this  great  charter 
of  our  liberties,  to  provide  for  minute  specifications  of  its  powers, 
or  to  declare  the  means  by  which  those  powers  should  be  carried 
into  execution.  It  was  foreseen  that  this  would  be  a  perilous  and 
difficult,  if  not  an  impracticable,  task.  The  instrument  was  not 
intended  to  provide  merely  for  the  exigencies  of  a  few  years,  but 


618  CASES  ON   CONSTITUTIONAL  LAW. 

was  to  endure  through  a  long  lapse  of  ages,  the  events  of  which 
were  locked  up  in  the  inscrutable  purposes  of  Providence.  It 
could  not  be  foreseen  what  new  changes  §ind  modifications  of  power 
might  be  indispensable  to  effectuate  the  general  objects  of  the 
charter;  restrictions  and  specifications,  which  at  the  present  might 
seem  salutary,  might,  in  the  end,  prove  the  overthrow  of  the 
system  itself.  Hence  its  powers  are  expressed  in  general  terms, 
leaving  to  the  legislature,  from  time  to  time,  to  adopt  its  own 
means  to  effectuate  legitimate  objects,  and  to  mould  and  model 
the  exercise  of  its  powers,  as  its  own  wisdom  and  the  public  interests 
should  require. 

With  these  principles  in  view,  principles  in  respect  to  which 
no  difference  of  opinion  ought  to  be  indulged,  let  us  now  proceed 
to  the  interpretation  of  the  constitution,  so  far  as  regards  the 
great  points  in  controversy. 

The  third  article  of  the  constitution  is  that  which  must  princi- 
pally attract  our  attention.     .     .     . 

This  leads  us  to  the  consideration  of  the  great  question  as  to  the 
nature  and  extent  of  the  appellate  jurisdiction  of  the  United 
States.  We  have  already  seen  that  appellate  jurisdiction  is  given 
by  the  constitution  to  the  supreme  court  in  all  cases  where  it  has 
not  original  jurisdiction,  subject,  however,  to  such  exceptions  and 
regulations  as  congress  may  prescribe.  It  is,  therefore,  capable  of 
embracing  every  case  enumerated  in  the  constitution,  which  is  not 
exclusively  to  be  decided  by  way  of  original  jurisdiction.  But  the 
exercise  of  appellate  jurisdiction  is  far  from  being  limited  by  the 
terms  of  the  constitution  to  the  supreme  court.  There  can  be  no 
doubt  that  congress  may  create  a  succession  of  inferior  tribunals, 
in  each  of  which  it  may  vest  appellate  as  well  as  original  jurisdic- 
tion. The  judicial  power  is  delegated  by  the  constitution  in  the 
most  general  terms,  and  may,  therefore,  be  exercised  by  congress 
under  every  variety  of  form,  of  appellate  or  original  jurisdiction. 
And  as  there  is  nothing  in  the  constitution  which  restrains  or 
limits  this  power,  it  must,  therefore,  in  all  other  cases,  subsist  in 
the  utmost  latitude  of  which,  in  its  own  nature,  it  is  susceptible. 

As,  then,  by  the  terms  of  the  constitution,  the  appellate  jurisdic- 
tion is  not  limited  as  to  the  supreme  court,  and  as  to  this  court 
it  may  be  exercised  in  all  other  cases  than  those  of  which  it  has 
original  cognizance,  what  is  there  to  restrain  its  exercise  over  state 
tribunals  in  the  enumerated  cases?  The  appellate  power  is  not 
limited  by  the  terms  of  the  third  article  to  any  particular  courts. 
The  words  are,  "the  judicial  power  (which  includes  appellate 
power)  shall  extend  to  all  cases,"  &c.,  and  "in  all  other  cases  be- 


MARTIN  V.  HUNTER'S  LESSEE.  619 

fore  mentioned  the  supreme  court  shall  have  appellate  jurisdiction." 
It  is  the  case,  then,  and  not  the  court,  that  gives  the  Jurisdiction. 
If  the  judicial  power  extends  to  the  case,  it  will  be  in  vain  to  search 
in  the  letter  of  the  constitution  for  any  qualifications  as  to  the 
tribunal  where  it  depends.  It  is  incumbent,  then,  upon  those 
who  assert  such  a  qualification  to  show  its  existence  by  necessary 
implication.  If  the  text  be  clear  and  distinct,  no  restriction  upon 
its  plain  and  obvious  import  ought  to  be  admitted,  unless  the  in- 
ference be  irresistible. 

If  the  constitution  meant  to  limit  the  appellate  jurisdiction  to 
cases  pending  in  the  courts  of  the  United  States,  it  would  neces- 
sarily follow  that  the  jurisdiction  of  these  courts  would,  in  all 
the  cases  enumerated  in  the  constitution,  be  exclusive  of  state 
tribunals.  How  otherwise  could  the  jurisdiction  extend  to  all  cases 
arising  under  the  constitution,  laws,  and  treaties  of  the  United 
States,  or  to  all  cases  of  admiralty  and  maritime  jurisdiction?  If 
some  of  these  cases  might  be  entertained  by  state  tribunals,  and  no 
appellate  jurisdiction  as  to  them  should'  exist,  then  the  appellate 
power  would  not  extend  to  all,  but  to  some,  cases.  If  state  tribunals 
might  exercise  concurrent  jurisdiction  over  all  or  some  of  the 
other  classes  of  cases  in  the  constitution  without  control,  then 
the  appellate  jurisdiction  of  the  United  States,  might,  as  to  such 
cases,  have  no  real  existence,  contrary  to  the  manifest  intent  of  the 
constitution.  Under  such  circumstances,  to  give  efl^ect  to  the  judi- 
cial power,  it  must  be  construed  to  be  exclusive;  and  this  not  only 
when  the  casus  foederis  should  arise  directly,  but  when  it  should 
arise,  incidentally,  in  cases  pending  in  state  courts.  This  construc- 
tion would  abridge  the  jurisdiction  of  such  court  far  more  than 
has  been  ever  contemplated  in  any  act  of  congress. 

On  the  other  hand,  if,  as  has  been  contended,  a  discretion  be 
vested  in  congress  to  establish,  or  not  to  establish,  inferior  courts 
at  their  own  pleasure,  and  congress  should  not  establish  such  courts, 
the  appellate  jurisdiction  of  the  supreme  court  would  have  noth- 
ing to  act  upon,  unless  it  could  act  upon  cases  pending  in  the 
state  courts.  Under  such  circumstances,  it  must  be  held  that  the 
appellate  power  would  extend  to  state  courts;  for  the  constitution 
is  peremptory  that  it  shall  extend  to  certain  enumerated  cases, 
which  cases  could  exist  in  no  other  courts.  Any  other  construc- 
tion, upon  this  supposition,  would  involve  this  strange  contradic- 
tion, that  a  discretionary  power  vested  in  congress,  and  which  they 
might  rightfully  omit  to  exercise,  would  defeat  the  absolute  in- 
junctions of  the  constitution  in  relation  to  the  whole  appellate 
power. 


620  CASES  ON  CONSTITUTIONAL  LAW. 

But  it  is  plain  that  the  framers  of  the  constitution  did  contem- 
plate that  cases  within  the  judicial  cognizance  of  the  United  States 
not  only  might  but  would  arise  in  the  state  courts,  in  the  exercise 
of  their  ordinary  jurisdiction.  With  this  view  the  sixth  article 
declares,  that  "this  constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every  State 
shall  be  bound  thereby,  anything  in  the  constitution,  or  laws  of 
any  State  to  the  contrary  notwithstanding."  It  is  obvious  that  this 
obligation  is  imperative  upon  the  state  judges  in  their  official,  and 
not  merely  in  their  private,  capacities.  From  the  very  nature  of 
their  judicial  duties  they  would  be  called  upon  to  pronounce  the 
law  applicable  to  the  case  in  judgment.  They  were  not  to  decide 
merely  according  to  the  laws  or  constitution  of  the  State,  but 
according  to  the  constitution,  laws,  and  treaties  of  the  United 
States,  "the  supreme  law  of  the  land." 

A  moment's  consideration  will  show  us  the  necessity  and  pro- 
priety, of  this  provision  in  cases  where  the  jurisdiction  of  the  state 
courts  is  unquestionable.  Suppose  a  contract  for  the  payment 
of  money  is  made  between  citizens  of  the  same  State,  and  per- 
formance thereof  is  sought  in  the  courts  of  that  State;  no  person 
can  doubt  that  the  jurisdiction  completely  and  exclusively  attaches, 
in  the  first  instance,  to  such  courts.  Suppose,  at  the  trial,  the 
defendant  sets  up  in  his  defense  a  tender  under  a  state  law,  mak- 
ing paper  money  a  good  tender,  or  a  state  law,  impairing  the  obliga- 
tion of  such  contract,  which  law,  if  binding,  would  defeat  the  suit. 
The  constitution  of  the  United  States  has  declared  that  no  State 
shall  make  anything  but  gold  or  silver  coin  a  tender  in  payment  of 
debts,  or  pass  a  law  impairing  the  obligation  of  contracts.  If 
congress  shall  not  have  passed  a  law  providing  for  the  removal 
of  such  a  suit  to  the  courts  of  the  United  States,  must  not  the 
state  court  proceed  to  hear  and  determine  it?  Can  a  mere  plea 
in  defense  be  of  itself  a  bar  to  further  proceedings,  so  as  to  pro- 
hibit an  inquiry  into  its  truth  or  legal  propriety,  when  no  other 
tribunal  exists  to  whom  judicial  cognizance  of  such  cases  is  con- 
fided? Suppose  an  indictment  for  a  crime  in  a  state  court,  and 
the  defendant  should  allege  in  his  defense  that  the  crime  was 
created  by  an  ex  post  facto  act  of  the  State,  must  not  the  state 
court,  in  the  exercise  of  a  jurisdiction  which  has  already  rightfully 
attached,  have  a  right  to  pronounce  on  the  validity  and  sufficiency 
of  the  defense?  It  would  be  extremely  difficult,  upon  any  legal 
principles,  to  give  a  negative  answer  to  these  inquiries.    Innumer- 


MARTIN  V.  HUNTER'S  LESSEE.  621 

able  instances  of  the  same  sort  might  be  stated  in  illustration  of 
the  position;  and  unless  the  state  courts  could  sustain  jurisdiction 
in  such  cases,  this  clause  of  the  sixth  article  would  be  without 
meaning  or  effect,  and  public  mischiefs,  of  a  most  enormous  mag- 
nitude, would  inevitably  ensue. 

It  must,  therefore,  be  conceded  that  the  constitution  not  only 
contemplated,  but  meant  to  provide  for  cases  within  the  scope  of 
the  judicial  power  of  the  United  States,  which  might  yet  depend 
before  state  tribunals.  It  was  foreseen  that  in  the  exercise  of  their 
ordinary  jurisdiction,  state  courts  would  incidentally  take  cog- 
nizance of  cases  arising  under  the  constitution,  the  laws,  and 
treaties  of  the  United  States.  Yet  to  all  these  cases  the  judicial 
power,  by  the  very  terms  of  the  constitution,  is  to  extend.  It  can- 
not extend  by  original  jurisdiction  if  that  was  already  rightfully 
and  exclusively  attached  in  the  state  courts,  which  (as  has  been 
already  shown)  may  occur;  it  must  therefore  extend  by  appellate 
jurisdiction,  or  not  at  all.  It  would  seem  to  follow  that  the 
appellate  power  of  the  United  States  must,  in  such  cases,  extend 
to  state  tribunals;  and  if  in  such  cases,  there  is  no  reason  why 
it  should  not  equally  attach  upon  all  others  within  the  purview 
of  the  constitution. 

It  has  been  argued  that  such  an  appellate  jurisdiction  over  state 
courts  is  inconsistent  with  the  genius  of  our  governments,  and  the 
spirit  of  the  constitution.  That  the  latter  was  never  designed  to 
act  upon  state  sovereignties,  but  only  upon  the  people,  and  that, 
if  the  power  exists,  it  will  materially  impair  the  sovereignty  of 
the  States,  and  the  independence  of  their  courts.  We  cannot 
yield  to  the  force  of  this  reasoning;  it  assumes  principles  which 
we  cannot  admit,  and  draws  conclusions  to  which  we  do  not  yield 
our  assent. 

It  is  a  mistake  that  the  constitution  was  not  designed  to  operate 
upon  States,  in  their  corporate  capacities.  It  is  crowded  with  pro- 
visions which  restrain  or  annul  the  sovereignty  of  the  States  in 
some  of  the  highest  branches  of  their  prerogatives.  The  tenth  sec- 
tion of  the  first  article  contains  a  long  list  of  disabilities  and  pro- 
hibitions imposed  upon  the  States.  Surely,  when  such  essential 
portions  of  state  sovereignty  are  taken  away,  or  prohibited  to  be 
exercised,  it  cannot  be  correctly  asserted  that  the  constitution  does 
not  act  upon  the  States.  The  language  of  the  constitution  is  also 
imperative  upon  the  States,  as  to  the  performance  of  many  duties. 
It  is  imperative  upon  the  state  legislatures  to  make  laws  prescribing 
the  time,  places,  and  manner  of  holding  elections  for  senators  and 
representatives,  and  for  electors  of  president  and  vice-president. 


622  CASES  ON   CONSTITUTIONAL  LAW. 

And  in  these,  as  well  as  in  some  other  cases,  congress  have  a  right 
to  revise,  amend,  or  supersede  the  laws  which  may  be  passed  by 
state  legislatures.  When,  therefore,  the  States  are  stripped  of 
some  of  the  highest  attributes  of  sovereignty,  and  the  same  arc 
given  to  the  United  States;  when  the  legislatures  of  the  States 
are,  in  some  respects,  under  the  control  of  congress,  and  in  every 
case  are,  under  the  constitution,  bound  by  the  paramount  authority 
of  the  United  States;  it  is  certainly  difficult  to  support  the  argu- 
ment that  the  appellate  power  over  the  decisions  of  state  courts  is 
contrary  to  the  genius  of  our  institutions.  The  courts  of  the  United 
States  can,  without  question,  revise  the  proceedings  of  the  execu- 
tive and  legislative  authorities  of  the  States,  and  if  they  are  found 
to  be  contrary  to  the  constitution,  may  declare  them  to  be  of  no 
legal  validity.  Surely,  the  exercise  of  the  same  right  over  judicial 
tribunals  is  not  a  higher  or  more  dangerous  act  of  sovereign  power. 

Nor  can  such  a  right  be  deemed  to  impair  the  independence  of 
state  judges.  It  is  assuming  the  very  ground  in  controversy  to 
assert  that  they  possess  an  absolute  independence  of  the  United 
States.  In  respect  to  the  powers  granted  to  the  United  States, 
they  are  not  independent;  they  are  expressly  bound  to  obedience 
by  the  letter  of  the  constitution;  and  if  they  should  unintention- 
ally transcend  their  authority,  or  misconstrue  the  constitution, 
there  is  no  more  reason  for  giving  their  judgments  an  absolute 
and  irresistible  force,  than  for  giving  it  to  the  acts  of  the  other 
co-ordinate  departments  of  state  sovereignty. 

The  argument  urged  from  the  possibility  of  the  abuse  of  the 
revising  power,  is  equally  unsatisfactory.  It  is  always  a  doubtful 
course,  to  argue  against  the  use  or  existence  of  a  power,  from  the 
possibility  of  its  abuse.  It  is  still  more  difficult,  by  such  an  argu- 
ment, to  engraft  upon  a  general  power,  a  restriction  which  is  not 
to  be  found  in  the  terms  in  which  it  is  given.  From  the  very 
nature  of  things,  the  absolute  right  of  decision,  in  the  last  resort, 
must  rest  somewhere — wherever  it  may  be  vested  it  is  susceptible 
of  abuse.  In  all  questions  of  jurisdiction  the  inferior,  or  appellate 
court  must  pronounce  the  final  judgment;  and  common-sense,  as 
well  as  legal  reasoning,  has  conferred  it  upon  the  latter. 

It  has  been  further  argued  against  the  existence  of  this  appellate 
power,  that  it  would  form  a  novelty  in  our  judicial  institutions. 
This  is  certainly  a  mistake.  In  the  articles  of  confederation,  an 
instrument  framed  with  infinitely  more  deference  to  state  rights 
and  state  jealousies,  a  power  was  given  to  congress,  to  establish 
"courts  for  revising  and  determining,  finally,  appeals  in  all  cases 
of  captures."    It  is  remarkable,  that  no  power  was  given  to  enter- 


MARTIN  V.  HUNTER'S  LESSEE.  623 

tain  original  jurisdiction  in  such  cases;  and,  consequently,  the  ap- 
pellate power  (although  not  so  expressed  in  terms)  was  altogether 
to  be  exercised  in  revising  the  decisions  of  state  tribunals.  This 
was,  undoubtedly,  so  far  a  surrender  of  state  sovereignty;  but  it 
never  was  supposed  to  be  a  power  fraught  with  public  danger,  or 
destructive  of  the  independence  of  state  judges.  On  the  contrary, 
it  was  supposed  to  be  a  power  indispensable  to  the  public  safety, 
inasmuch  as  our  national  rights  might  otherwise  be  compromitted, 
and  our  national  peace  be  endangered.  Under  the  present  consti- 
tution the  prize  jurisdiction  is  confined  to  the  courts  of  the  United 
States;  and  a  power  to  revise  the  decisions  of  state  courts,  if  they 
should  assert  jurisdiction  over  prize  causes,  cannot  be  less  impor- 
tant, or  less  useful,  than  it  was  under  the  confederation. 

In  this  connection,  we  are  led  again  to  the  construction  of  the 
words  of  the  constitution,  "the  judicial  power  shall  extend,"  etc. 
If,  as  has  been  contended  at  the  bar,  the  term  "extend"  have 
a  relative  signification,  and  mean  to  widen  an  existing  power,  it 
will  then  follow,  that,  as  the  confederation  gave  an  appellate  power 
over  state  tribunals,  the  constitution  enlarged  or  widened  that  ap- 
pellate power  to  all  the  other  cases  in  which  jurisdiction  is  given 
to  the  courts  of  the  United  States.  It  is  not  presumed  that  the 
learned  counsel  would  choose  to  adopt  such  a  conclusion. 

It  is  further  argued,  that  no  great  public  mischief  can  result 
from  a  construction  which  shall  limit  the  appellate  power  of  the 
United  States  to  cases  in  their  own  courts:  first,  because  state 
judges  are  bound  by  an  oath  to  support  the  constitution  of  the 
Ignited  States,  and  must  be  presumed  to  be  men  of  learning  and 
integrity;  and,  secondly,  because  congress  must  have  an  unques- 
tionable right  to  remove  all  cases  within  the  scope  of  the  judicial 
power,  from  the  state  courts  to  the  courts  of  the  United  States, 
at  any  time  before  final  judgment,  though  not  after  final  judgment. 
As  to  the  first  reason — admitting  that  the  judges  of  the  state  courts 
are,  and  always  will  be,  of  as  much  learning,  integrity,  and  wis- 
dom, as  those  of  the  courts  of  the  United  States  (which  we  very 
cheerfully  admit),  it  does  not  aid  the  argument.  It  is  manifest 
that  the  constitution  has  proceeded  upon  a  theory  of  its  own,  and 
given  or  withheld  powers  according  to  the  judgment  of  the  Amer- 
ican people,  by  whom  it  was  adopted.  We  can  only  construe  its 
powers,  and  cannot  inquire  into  the  policy  or  principles  which 
induced  the  grant  of  them.  The  constitution  has  presumed 
(whether  rightly  or  wrongly  we  do  not  inquire)  that  state  attach- 
ments, state  prejudices,  state  jealousies,  and  state  interests,  might 
sometimes  obstruct,  or  control,  or  be  supposed  to  obstruct  or  con- 


624  CASES   ON   CONSTITUTIONAL   LAW. 

trol,  the  regular  administration  of  justice.  Hence,  in  controver- 
sies between  States;  between  citizens  of  different  States;  between 
citizens  claiming  grants  under  different  States;  between  a  State 
and  its  citizens,  or  foreigner,  and  between  citizens  and  foreigners, 
it  enables  the  parties,  under  the  authority  of  congress,  to  have 
the  controversies  heard,  tried,  and  determined  before  the  national 
tribunals.  No  other  reason  than  that  which  has  been  stated  can 
be  assigned,  why  some,  at  least,  of  those  cases  should  not  have  been 
left  to  the  cognizance  of  the  state  courts.  In  respect  to  the  other 
enumerated  cases — ^the  cases  arising  under  the  constitution,  laws, 
and  treaties  of  the  United  States,  cases  affecting  ambassadors  and 
other  public  ministers,  and  cases  of  admiralty  and  maritime  juris- 
diction— reasons  of  a  higher  and  more  extensive  nature,  touch- 
ing the  safety,  peace,  and  sovereignty  of  the  nation,  might  well 
justify  a  grant  of  exclusive  jurisdiction. 

This  is  not  all.  A  motive  of  another  kind,  perfectly  compatible 
with  the  most  sincere  respect  for  state  tribunals,  might  induce  the 
grant  of  appellate  power  over  their  decisions.  That  motive  is  the 
importance,  and  even  necessity  of  uniformity  of  decisions  through- 
out the  whole  United  States,  upon  all  subjects  within  the  purview 
of  the  constitution.  Judges  of  equal  learning  and  integrity,  in 
different  States,  might  differently  interpret  a  statute,  or  a  treaty 
of  the  United  States,  or  even  the  constitution  itself.  If  there 
were  no  revising  authority  to  control  these  jarring  and  discordant 
judgments,  and  harmonize  them  into  uniformity,  the  laws,  the 
treaties,  and  the  constitution  of  the  United  States  would  be  differ- 
ent in  different  States,  and  might  perhaps  never  have  precisely 
the  same  construction,  obligation,  or  efficacy,  in  any  two  States. 
The  public  mischiefs  that  would  attend  such  a^tate  of  things  would 
be  truly  deplorable;  and  it  cannot  be  believed  that  they  could  have 
escaped  the  enlightened  convention  which  formed  the  constitu- 
tion. What,  indeed,  might  then  have  been  only  prophecy  has  now 
become  fact;  and  the  appellate  jurisdiction  must  continue  to  be 
the  only  adequate  remedy  for  such  evils. 

There  is  an  additional  consideration,  which  is  entitled  to  great 
weight.  The  constitution  of  the  United  States  was  designed  for 
the  common  and  equal  benefit  of  all  the  people  of  the  United  States. 
The  judicial  power  was  granted  for  the  same  benign  and  salutary 
purposes.  It  was  not  to  be  exercised  exclusively  for  the  benefit 
of  parties  who  might  be  plaintiffs,  and  would  elect  the  national 
forum,  but  also  for  the  protection  of  defendants  who  might  be 
entitled  to  try  their  rights,  or  assert  their  privileges,  before  the 
same  forum.     Yet,  if  the  construction  contended  for  be  correct. 


MARTIN  V.  HUNTER'S  LESSEE.  625 

it  will  follow,  that  as  the  plaintiff  may  always  elect  the  state  court, 
the  defendant  may  be  deprived  of  all  the  security  which  the  con- 
stitution intended  in  aid  of  his  rights.  Such  a  state  of  things 
can,  in  no  respect,  be  considered  as  giving  equal  rights.  To  obviate 
this  difficulty,  we  are  referred  to  the  power  which  it  is  admitted 
congress  possess  to  remove  suits  from  state  courts  to  the  national 
courts;  and  this  forms  the  second  ground  upon  which  the  argu- 
ment we  are  considering  has  been  attempted  to  be  sustained. 

This  power  of  removal  is  not  to  be  found  in  express  terms  in 
any  part  of  the  constitution;  if  it  be  given,  it  is  only  given  by 
implication,  as  a  power  necessary  and  proper  to  carry  into  effect 
some  express  power.  The  power  of  removal  is  certainly  not,  in 
strictness  of  language;  it  presupposes  an  exercise  of  original  juris- 
diction to  have  attached  elsewhere.  The  existence  of  this  power  of 
removal  is  familiar  in  courts  acting  according  to  the  course  of  the 
common  law  in  criminal  as  well  as  civil  cases,  and  it  is  exercised 
before  as  well  as  after  judgment.  But  this  is  always  deemed  in 
both  cases  an  exercise  of  appellate,  and  not  of  original  jurisdiction. 
If,  then,  the  right  of  removal  be  included  in  the  appellate  jurisdic- 
tion, it  is  only  because  it  is  one  mode  of  exercising  that  power,  and 
as  congress  is  not  limited  by  the  constitution  to  any  particular 
mode,  or  time  of  exercising  it,  it  may  authorize  a  removal  either 
before  or  after  the  judgment.  The  time,  the  process,  and  the  man- 
ner, must  be  subject  to  its  absolute  legislative  control.  A  writ 
of  error  is,  indeed,  but  a  process  which  removes  the  record  of  one 
court  to  the  possession  of  another  court,  and  enables  the  latter  to 
inspect  the  proceedings,  and  give  such  judgment  as  its  own 
opinion  of  the  law  and  justice  of  the  case  may  warrant.  There 
is  nothing  in  the  nature  of  the  process  which  forbids  it  from  being 
applied,  by  the  legislature,  to  interlocutory  as  well  as  final  judg- 
ments. And  if  the  right  of  removal  from  state  courts  exists  be- 
fore judgment,  because  it  is  included  in  the  appellate  power,  it 
must,  for  the  same  reason,  exist  after  judgment.  And  if  the 
appellate  power  by  the  constitution  does  not  include  cases  pend- 
ing in  state  courts,  the  right  of  removal,  which  is  but  a  mode  of 
exercising  that  power,  cannot  be  applied  to  them.  Precisely  the 
same  objections,  therefore,  exist  as  to  the  right  of  removal  before 
judgment  as  after,  and  both  must  stand  or  fall  together.  Nor, 
indeed,  would  the  force  of  the  arguments  on  either  side  materially 
vary,  if  the  right  of  removal  were  an  exercise  of  original  jurisdic- 
tion. It  would  equally  trench  upon  the  jurisdiction  and  inde- 
pendence of  state  tribunals. 

The  remedy,  too,  of  removal  of  suits  would  be  utterly  inadequate 

40 


626  CASES  ON  CONSTITUTIONAL  LAW. 

to  the  purposes  of  the  constitution,  if  it  could  act  only  on  the 
parties,  and  not  upon  the  state  courts.  In  respect  to  criminal 
prosecutions,  the  difficulty  seems  admitted  to  be  insurmountable; 
and,  in  respect  to  civil  suits,  there  would,  in  many  cases,  be  rights 
without  corresponding  remedies.  If  state  courts  should  deny  the 
constitutionality  of  the  authority  to  remove  suits  from  their  cog- 
nizance, in  what  manner  could  they  be  compelled  to  relinquish 
the  jurisdiction?  In  respect  to  criminal  cases,  there  would  at 
once  be  an  end  of  all  control,  and  the  state  decisions  would  be  para- 
mount to  the  constitution;  and  though  in  civil  suits  the  courts  of 
the  United  States  might  act  upon  the  parties,  yet  the  state  courts 
might  act  in  the  same  way;  and  this  conflict  of  jurisdictions 
would  not  only  jeopardize  private  rights,  but  bring  into  imminent 
peril  the  public  interests. 

On  the  whole,  the  court  are  of  opinion,  that  the  appellate  power 
of  the  United  States  does  extend  to  cases  pending  in  the  state 
courts;  and  that  the  25th  section  of  the  Judiciary  Act,  which 
authorizes  the  exercise  of  this  jurisdiction  in  the  specified  cases, 
by  a  writ  of  error,  is  supported  by  the  letter  and  spirit  of  the  con- 
stitution. We  find  no  clause  in  that  instrument  which  limits  this 
power;  and  we  dare  not  interpose  a  limitation  where  the  people 
have  not  be«i  disposed  to  create  one. 

Strong  as  this  conclusion  stands  upon  the  general  language  of 
the  constitution,  it  may  still  derive  support  from  other  sources. 
It  is  an  historical  fact,  that  this  exposition  of  the  constitution, 
extending  its  appellate  power  to  state  courts,  was,  previous  to  its 
adoption,  uniformly  and  publicly  avowed  by  its  friends,  and  ad- 
mitted by  its  enemies,  as  the  basis  of  their  respective  reasonings, 
both  in  and  out  of  the  state  conventions.  It  is  an  historical  fact, 
that  at  the  time  when  the  Judiciary  Act  was  submitted  to  the 
deliberations  of  the  first  congress,  composed,  as  it  was,  not  only 
of  men  of  great  learning  and  ability,  but  of  men  who  had  acted 
a  principal  part  in  framing,  supporting,  or  opposing  that  consti- 
tution, the  same  exposition  was  explicitly  declared  and  admitted 
by  the  friends  and  by  the  opponents  of  that  system.  It  is  an  his- 
torical fact,  that  the  supreme  court  of  the  United  States  have,  from 
time  to  time,  sustained  this  appellate  jurisdiction  in  a  great  variety 
of  cases,  brought  from  the  tribunals  of  many  of  the  most  impor- 
tant States  in  the  Union,  and  that  no  state  tribunal  has  ever 
breathed  a  judicial  doubt  on  the  subject,  or  declined  to  obey  the 
mandate  of  the  supreme  court,  until  the  present  occasion.  This 
weight  of  contemporaneous  exposition  by  all  parties,  this  acquies- 
cence of  enlightened  state  courts,  and  these  judicial  decisions  of 


1 


COHENS  V.  VIRGINIA.  627 

the  supreme  court  through  so  long  a  period,  do,  as  we  think,  place 
the  doctrine  upon  a  foundation  of  authority  which  cannot  be 
shalvcn,  without  delivering  over  the  subject  to  perpetual  and  ir- 
remediable doubts.     .     .     . 

It  is  the  opinion  of  the  whole  court,  that  the  judgment  of  the 
court  of  appeals  of  Virginia,  rendered  on  the  mandate  in  this 
cause,  be  reversed,  and  the  judgment  of  the  district  court,  held  at 
Winchester,  be,  and  the  same  is  hereby  affirmed. 

[Mr.  Justice  Johnson  delivered  a  concurring  opinion.] 


COHENS  V.  THE  STATE  OF  VIRGINIA. 

6  Wheaton,  264.    Decided  1821. 
[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  court  of 
Hustings,  for  the  borough  of  Norfolk,  on  an  information  for  sell- 
ing lottery  tickets,  contrary  to  an  act  of  the  legislature  of  Vir- 
ginia. In  the  S'tate  court,  the  defendant  claimed  the  protection 
of  an  act  of  congress.  A  case  was  agreed  between  the  parties, 
which  states  the  act  of  assembly  on  which  the  prosecution  was 
founded,  and  the  act  of  congress  on  which  the  defendant  relied, 
and  concludes  in  these  words:  "If  upon  this  case  the  court  shall 
be  of  opinion  that  the  acts  of  congress  before  mentioned  were  valid, 
and,  on  the  true  construction  of  those  acts,  the  lottery  tickets  sold 
by  the  defendants  as  aforesaid,  might  lawfully  be  sold  within  the 
State  of  Virginia,  notwithstanding  the  act  or  statute  of  the  general 
assembly  of  Virginia  prohibiting  such  sale,  then  judgment  to  be 
entered  for  the  defendants.  And  if  the  court  should  be  of  opin- 
ion that  the  statute  or  act  of  the  general  assembly  of  the  State 
of  Virginia,  prohibiting  such  sale,  is  valid,  notwithstanding  the 
said  acts  of  congress,  then  judgment  to  be  entered  that  the  defend- 
ants are  guilty,  and  that  the  commonwealth  recover  against  them 
one  hundred  dollars  and  costs." 

Judgment  was  rendered  against  the  defendants;  and  the  court 
in  which  it  was  rendered  being  the  highest  court  of  the  State  in 
which  the  cause  was  cognizable,  the  record  has  been  brought  into 
this  court  by  writ  of  error. 


628  CASES  ON  CONSTITUTIONAL  LAW. 

The  defendant  in  error  moves  to  dismiss  this  writ,  for  want  of 
jurisdiction. 

In  support  of  this  motion,  three  points  have  been  made,  and 
argued  with  the  ability  which  the  importance  of  the  question 
merits.    These  points  are: — 

1.  That  a  State  is  a  defendant. 

2.  That  no  writ  of  error  lies  from  this  court  to  a  sitate  court. 

3.  The  third  point  has  been  presented  in  different  forms  by 
the  gentlemen  who  have  argued  it.  The  counsel  who  opened  the 
cause  said  that  the  want  of  jurisdiction  was  shown  by  the  subject- 
matter  of  the  case.  The  counsel  who  followed  him  said  that  juris- 
diction was  not  given  by  the  Judiciary  Act.  The  court  has  be- 
stowed all  its  attention  on  the  arguments  of  both  gentlemen,  and 
supposes  that  their  tendency  is  to  show  that  this  court  has  no 
jurisdiction  of  the  case,  or,  in  other  words,  has  no  right  to  review 
the  judgment  of  the  state  court,  because  neither  the  constitution 
nor  any  law  of  the  United  States  has  been  violated  by  that  judg- 
ment. 

The  questions  presented  to  the  court  by  the  first  two  points 
made  at  the  bar  are  of  great  magnitude,  and  may  be  truly  said 
vitally  to  affect  the  Union.  They  exclude  the  inquiry  whether  the 
constitution  and  laws  of  the  United  States  have  been  violated  by 
the  judgment  which  the  plaintiffs  in  error  seek  to  review;  and 
maintain  that,  admitting  such  violation,  it  is  not  in  the  power 
of  the  government  to  apply  a  corrective.  They  maintain  that  the 
nation  does  not  possess  a  department  capable  of  restraining  peace- 
ably, and  by  authority  of  law,  any  attempts  which  may  be  made, 
by  a  part,  against  the  legitimate  powers  of  the  whole;  and  that  the 
government  is  reduced  to  the  alternative  of  submitting  to  such 
attempts,  or  of  resisting  them  by  force.  They  maintain  that  the 
constitution  of  the  United  States  has  provided  no  tribunal  for 
the  final  construction  of  itself,  or  of  the  laws  or  treaties  of  the 
nation;  but  that  this  power  may  be  exercised  in  the  last  resort 
by  the  courts  of  every  State  in  the  Union.  That  the  constitution, 
laws,  and  treaties,  may  receive  as  many  constructions  as  there  are 
States;  and  that  this  is  not  a  mischief,  or,  if  a  mischief,  is  irre- 
mediable. These  abstract  propositions  are  to  be  determined;  for 
he  who  demands  decision  without  permitting  inquiry,  affirms  that 
the  decision  he  asks  does  not  depend  on  inquiry. 

If  such  be  the  constitution,  it  is  the  duty  of  the  court  to  bow 
with  respectful  submission  to  its  provisions.  If  such  be  not  the 
constitution,  it  is  equally  the  duty  of  this  court  to  say  so;    and 


COHENS  V.  VIRGINIA.  629 

to  perform  that  task  which  the  American  people  have  assigned  to 
the  judicial  department. 

1.  The  first  question  to  be  considered  is,  whether  the  jurisdic- 
tion of  this  court  is  excluded  by  the  character  of  the  parties,  one 
of  them  being  a  State,  and  the  other  a  citizen  of  that  State? 

The  2d  section  of  the  third  article  of  the  constitution  defines 
the  extent  of  the  judicial  power  of  the  United  States.  Jurisdiction 
is  given  to  the  courts  of  the  Union  in  two  classes  of  cases.  In  the 
first,  their  jurisdiction  depends  on  the  character  of  the  cause, 
whoever  may  be  the  parties.  This  class  comprehends  "all  cases 
in  law  and  equity  arising  under  this  constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made,  under 
their  authority."  This  clause  extends  the  jurisdiction  of  the  court 
to  all  the  cases  described,  without  making  in  its  terms  any  exception 
whatever,  and  without  any  regard  to  the  condition  of  the  party. 
If  there  be  any  exception,  it  is  to  be  implied  against  the  express 
words  of  the  article. 

In  the  second  class,  the  jurisdiction  depends  entirely  on  the 
character  of  the  parties.  In  this  are  comprehended  "controversies 
between  two  or  more  States,  between  a  State  and  citizens  of  an- 
other State,"  "and  between  a  State  and  foreign  states,  citizens,  or 
subjects."  If  these  be  the  parties,  it  is  entirely  unimportant  what 
may  be  the  subject  of  controversy.  Be  it  what  it  may,  these  par- 
ties have  a  constitutional  right  to  come  into  the  courts  of  the 
Union. 

The  counsel  for  the  defendant  in  error  have  stated  that  the  cases 
which  arise  under  the  constitution  must  grow  out  of  those  pro- 
visions which  are  capable  of  self -execution;  examples  of  which  are 
to  be  found  in  the  second  section  of  the  fourth  article,  and  in  the 
tenth  section  of  the  first  article. 

A  case  which  arises  under  a  law  of  the  United  States  must,  we 
are  likewise  told,  be  a  right  given  by  some  act  which  becomes 
necessary  to  execute  the  powers  given  in  the  constitution,  of  which 
the  law  of  naturalization  is  mentioned  as  an  example. 

The  use  intended  to  be  made  of  this  exposition  of  the  first  part 
of  the  section,  defining  the  extent  of  the  judicial  power,  is  not 
clearly  understood.  If  the  intention  be  merely  to  distinguish  cases 
arising  under  the  constitution,  from  those  arising  under  a  law,  for 
the  sake  of  precision  in  the  application  of  this  argument,  these 
propositions  will  not  be  controverted.  If  it  be  to  maintain  that 
a  case  arising  under  the  constitution,  or  a  law,  must  be  one  in 
which  a  party  comes  into  court  to  demand  something  conferred 
on  him  by  the  constitution  or  a  law,  we  think  the  construction 


630  CASES  ON  CONSTITUTIONAL  LAW. 

too  narrow.  A  case  in  law  or  equity  consists  of  the  right  of  the 
one  party,  as  well  as  of  the  other,  and  may  truly  be  said  to  arise 
under  the  constitution  or  a  law  of  the  United  States,  whenever  its 
correct  decision  depends  on  the  cons'truction  of  either.  Congress 
seems  to  have  intended  to  give  its  own  construction  of  this  part 
of  the  constitution,  in  the  25th  section  of  the  Judiciary  Act;  and 
we  perceive  no  reason  to  depart  from  that  construction. 

The  jurisdiction  of  the  court,  then,  being  extended  by  the  letter 
of  the  constitution  to  all  cases  arising  under  it,  or  under  the  laws 
of  the  United  States,  it  follows  that  those  who  would  withdraw 
any  case  of  this  description  from  that  jurisdiction,  must  sustain 
the  exemption  they  claim  on  the  spirit  and  true  meaning  of  the 
constitution,  which  spirit  and  true  meaning  must  be  so  apparent 
as  to  overrule  the  words  which  its  framers  have  employed. 

The  counsel  for  the  defendant  in  error  have  undertaken  to  do 
this;  and  have  laid  down  the  general  proposition,  that  a  sover- 
eign independent  State  is  not  suable,  except  by  its  own  consent. 

This  general  proposition  will  not  be  controverted.  But  its  con- 
sent is  not  requisite  in  each  particular  case.  It  may  be  given  in  a 
general  law.  And  if  a  State  has  surrendered  any  portion  of  its 
sovereignty,  the  question  whether  a  liability  to  suit  be  a  part  of 
this  portion,  depends  on  the  instrument  by  which  the  surrender  is 
made.  If  upon  a  just  construction  of  that  instrument,  it  shall 
appear  that  the  State  has  submitted  to  be  sued,  then  it  has  parted 
with  this  sovereign  right  of  judging  in  every  case  on  the  justice 
of  its  own  pretensions,  and  has  intrusted  that  power  to  a  tribunal 
in  whose  impartiality  it  confides. 

The  American  States,  as  well  as  the  American  people,  have  be- 
lieved a  close  and  firm  Union  to  be  essential  to  their  liberty  and  to 
their  happiness.  They  have  been  taught  by  experience,  that  this 
Union  cannot  exist  without  a  government  for  the  whole;  and  they 
have  been  taught  by  the  same  experience  that  this  government 
would  be  a  mere  shadow,  that  must  disappoint  all  their  hopes, 
unless  invested  with  large  portions  of  that  sovereignty  which  be- 
longs to  independent  States.  Under  the  influence  of  this  opinion, 
and  thus  instructed  by  experience,  the  American  people,  in  the 
conventions  of  their  respective  States,  adopted  the  present  consti- 
tution. 

If  it  could  be  doubted  whether,  from  its  nature,  it  were  not 
supreme  in  all  cases  where  it  is  empowered  to  act,  that  doubt 
would  be  removed  by  the  declaration  that  "this  constitution,  and 
the  laws  of  the  United  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made,  under  the 


COHENS  V.  VIRGINIA.  G31 

authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land;  and  the  judges  in  every  State  shall  be  bound  thereby,  any- 
thing in  the  constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding." 

This  is  the  authoritative  language  of  the  American  people;  and, 
if  gentlemen  please,  of  the  American  States.  It  marks  with  lines 
too  strong  to  be  mistaken,  the  characteristic  distinction  between 
the  government  of  the  Union  and  those  of  the  States.  The  gen- 
eral government,  though  limited  as  to  its  objects,  is  supreme  with 
respect  to  those  objects.  This  principle  is  a  part  of  the  constitu- 
tion; and  if  there  be  any  who  deny  its  necessity,  none  can  deny 
its  authority. 

To  this  supreme  government  ample  powers  are  confided;  and 
if  it  were  possible  to  doubt  the  great  purposes  for  which  they  were 
so  confided,  the  people  of  the  United  States  have  declared  that 
they  are  given  "in  order  to  form  a  more  perfect  union,  establish 
justice,  insure  domestic  tranquillity,  provide  for  the  common  de- 
fense, promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  themselves  and  their  posterity." 

With  the  ample  powers  confided  to  this  supreme  government, 
for  these  interesting  purposes,  are  connected  many  express  and 
important  limitations  on  the  sovereignty  of  the  States,  which  are 
made  for  the  same  purposes.  The  powers  of  the  Union  on  the 
great  subjects  of  war,  peace,  and  commerce,  and  on  many  others, 
are  in  themselves  limitations  of  the  sovereignty  of  the  States;  but 
in  addition  to  these,  the  sovereignty  of  the  States  is  surrendered 
in  many  instances  where  the  surrender  can  only  operate  to  the 
benefit  of  the  people,  and  where,  perhaps,  no  other  power  is  con- 
ferred on  congress  than  a  conservative  power  to  maintain  the  prin- 
ciples established  in  the  constitution.  The  maintenance  of  these 
principles  in  their  purity  is  certainly  among  the  great  duties  of 
the  government.  One  of  the  instruments  by  which  this  duty  may 
be  peaceably  performed  is  the  judicial  department.  It  is  author- 
ized to  decide  all  cases,  of  every  description,  arising  under  the 
constitution  or  laws  of  the  United  States.  From  this  general  grant 
of  jurisdiction,  no  exception  is  made  of  those  cases  in  which  a 
State  may  be  a  party.  When  we  consider  the  situation  of  the 
government  of  the  Union  and  of  a  State,  in  relation  to  each  other; 
the  nature  of  our  constitution,  the  subordination  of  the  state  gov- 
ernments to  the  constitution;  the  great  purpose  for  which  juris- 
diction over  all  cases  arising  under  the  constitution  and  laws  of 
the  United  States,  is  confided  to  the  judicial  department,  are  we 
at  liberty  to  insert  in  this  general  grant,  an  exception  of  those 


632  CASES  ON  CONSTITUTIONAL  LAW. 

cases  in  which  a  State  may  be  a  party?  Will  the  spirit  of  the  con- 
stitution justify  this  attempt  to  control  its  words?  We  think  it 
will  not.  We  think  a  case  arising  under  the  constitution  or  laws 
of  the  United  States,  is  cognizable  in  the  courts  of  the  Union,  who- 
ever may  be  the  parties  to  that  case.     .     .     . 

It  is  most  true  that  this  court  will  not  take  jurisdiction  if  it 
should  not;  but  it  is  equally  true,  that  it  must  take  jurisdiction 
if  it  should.  The  judiciary  cannot,  as  the  legislature  may,  avoid 
a  measure  because  it  approaches  the  confines  of  the  constitution. 
We  cannot  pass  it  by  because  it  is  doubtful.  With  whatever  doubts, 
\vith  whatever  difficulties,  a  case  may  be  attended,  we  must  decide 
it,  if  it  be  brought  before  us.  We  have  no  more  right  to  decline 
the  exercise  of  jurisdiction  which  is  given,  than  to  usurp  that 
which  is  not  given.  The  one  or  the  other  would  be  treason  to  the 
constitu'tion.  Questions  may  occur  which  we  would  gladly  avoid; 
but  we  cannot  avoid  them.  All  we  can  do  is,  to  exercise  our  best 
judgment,  and  conscientiously  to  perform  our  duty.  In  doing 
this  on  the  present  occasion,  we  find  this  tribunal  invested  with 
appellate  jurisdiction  in  all  cases  arising  under  the  constitution 
and  laws  of  the  United  States.  We  find  no  exception  to  this  grant, 
and  we  cannot  insert  one.     .     .     . 

We  think,  then,  that  as  the  Constitution  originally  stood,  the 
appellate  jurisdiction  of  this  court,  in  all  cases  arising  under  the 
constitution,  laws,  or  treaties  of  the  United  States,  was  not  ar- 
rested by  the  circumstance  that  a  State  was  a  party. 

This  leads  to  a  consideration  of  the  11th  amendment. 

It  is  in  these  words:  "The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity  com- 
menced or  prosecuted  against  one  of  the  United  States,  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign  State.'"' 

It  is  a  part  of  our  history,  that,  at  the  adoption  of  the  con- 
stitution, all  the  States  were  greatly  indebted;  and  the  apprehen- 
sion that  these  debts  might  be  prosecuted  in  the  federal  courts, 
formed  a  very  serious  objection  to  that  instrument.  Suits  were 
instituted;  and  the  court  maintained  its  jurisdiction.  The  alarm 
was  general;  and,  to  quiet  the  apprehensions  that  were  so  exten- 
sively entertained,  this  amendment  was  proposed  in  Congress,  and 
adopted  by  the  State  legislatures.  That  its  motive  was  not  to 
maintain  the  sovereignty  of  a  State  from  the  degradation  supposed 
to  attend  a  compulsory  appearance  before  the  tribunal  of  the  na- 
tion, may  be  inferred  from  the  terms  of  the  amendment.  It  does 
not  comprehend  controversies  between  two  or  more  States,  or  be- 
tween a  State  and  a  foreign  state.    The  jurisdiction  of  the  court 


COHENS  V.  VIRGINIA.  633 

still  extends  to  these  cases;  and  in  these  a  State  may  still  be  sued. 
We  must  ascribe  the  amendment,  then,  to  some  other  cause  than 
the  dignity  of  a  State.  There  is  no  difficulty  in  finding  this  cause. 
Those  who  were  inhibited  from  commencing  a  suit  against  a  State. 
or  from  prosecuting  one  which  might  be  commenced  before  the 
adoption  of  the  amendment,  were  persons  who  might  probably  be 
its  creditors.  There  was  not  much  reason  to  fear  that  foreign  or 
sister  States  would  be  creditors  to  any  considerable  amount,  and 
there  was  reason  to  retain  the  jurisdiction  of  the  court  in  those 
cases,  because  it  might  be  essential  to  the  preservation  of  peace. 
The  amendment,  therefore,  extended  to  suits  commenced  or  prose- 
cuted by  individuals,  but  not  to  those  brought  by  States. 

The  first  impression  made  on  the  mind  by  this  amendment  is, 
that  it  was  intended  for  those  cases,  and  for  those  only,  in  which 
some  demand  against  a  State  is  made  by  an  individual  in  the 
courts  of  the  Union.  If  we  consider  the  causes  to  which  it  is  to  be 
traced,  we  are  conducted  to  the  same  conclusion.  A  general  in- 
terest might  well  be  felt  in  leaving  to  a  State  the  full  power  of 
consulting  its  convenience  in  the  adjustment  of  its  debts,  or  of 
other  claims  upon  it;  but  no  interest  could  be  felt  in  so  changing 
the  relations  between  the  whole  and  its  parts,  as  to  strip  the  gov- 
ernment of  the  means  of  protecting,  by  the  instrumentality  of  its 
courts,  the  constitution  and  laws  from  active  violation.     .     .     . 

Under  the  Judiciary  Act,^  the  effect  of  a  writ  of  error  is  simply 
to  bring  the  record  into  court,  and  submit  the  judgment  of  the 
inferior  tribunal  to  re-examination.  It  does  not  in  any  manner 
act  upon  the  parties;  it  acts  only  on  the  record.  It  removes  the 
record  into  the  supervising  tribunal.  Where,  then,  a  State  obtains 
a  judgment  against  an  individual,  and  the  court  rendering  such 
judgment  overrules  a  defense  set  up  under  the  constitution  or  laws 
of  the  United  States,  the  transfer  of  this  record  into  the  supreme 
court  for  the  sole  purpose  of  inquiring  whether  the  judgment  vio- 
lates the  constitution  of  the  United  States,  can,  with  no  propriety, 
we  think,  be  denominated  a  suit  commenced  or  prosecuted  against 
the  State  whose  judgment  is  so  far  re-examined.  Nothing  is  de- 
manded from  the  State.  No  claim  against  it  of  anv  description  is 
asserted  or  prosecuted.  The  party  is  not  to  be  restored  to  the 
possession  of  anything.  .  .  .  He  only  asserts  the  constitu- 
tional right  to  have  his  defense  examined  by  that  tribunal  whose 
province  it  is  to  construe  the  constitution  and  laws  of  the 
Union.     .     .     . 

1 1  Stats,  at  Large,  73. 


634  CASES  ON  CONSTITUTIONAL  LAW. 

The  point  of  view  in  which  this  writ  of  error,  with  its  citation, 
has  heen  considered  uniformly  in  the  courts  of  the  Union,  has 
been  well  illustrated  by  a  reference  to  the  course  of  this  court  in 
suits  instituted  by  the  United  States.  The  universally  received 
opinion  is,  that  no  suit  can  be  commenced  or  prosecuted  against 
the  United  States;  that  the  Judiciary  Act  does  not  authorize  such 
suits.  Yet  writs  of  error,  accompanied  with  citations,  have  uni- 
formly issued  for  the  removal  of  judgments  in  favor  of  the  United 
States  into  a  superior  court,  where  they  have,  like  those  in  favor 
of  an  individual,  been  re-examined,  and  affirmed  or  reversed.  It 
has  never  been  suggested  that  such  a  writ  of  error  was  a  suit 
against  the  United  States,  and  therefore  not  within  the  jurisdic- 
tion of  the  appellate  court. 

It  is,  then,  the  opinion  of  the  court,  that  the  defendant  who 
removes  a  judgment  rendered  against  him  by  a  state  court  into 
this  court,  for  the  purpose  of  re-examining  the  question  whether 
that  judgment  be  a  violation  of  the  constitution  or  laws  of  the 
United  States,  does  not  commence  or  prosecute  a  suit  against  the 
State,  whatever  may  be  its  opinion  where  the  effect  of  the  writ 
may  be  to  restore  the  party  to  the  possession  of  a  thing  which  he 
demands. 

But  should  we  in  this  be  mistaken,  the  error  does  not  affect  the 
case  now  before  the  court.  If  this  writ  of  error  be  a  suit  in  the 
sense  of  the  11th  amendment,  it  is  not  a  suit  commenced  or  prose- 
cuted "by  a  citizen  of  another  State,  or  by  a  citizen  or  subject  of 
any  foreign  state."  It  is  not  then  within  the  amendment,  but  is 
governed  entirely  by  the  constitution  as  originally  framed,  and  we 
have  already  seen  that,  in  its  origin,  the  judicial  power  was  ex- 
tended to  all  cases  arising  under  the  constitution  or  laws  of  the 
United  States,  without  respect  to  parties. 

2.  The  second  objection  to  the  jurisdiction  of  the  court  is,  that 
its  appellate  power  cannot  be  exercised,  in  any  case,  over  the  judg- 
ment of  a  state  court. 

This  objection  is  sustained  chiefly  by  arguments  drawn  from  the 
supposed  total  separation  of  the  judiciary  of  a  State  from  that  of 
the  Union,  and  their  entire  independence  of  each  other.  The 
argument  considers  the  federal  judiciary  as  completely  foreign 
to  that  of  a  State;  and  as  being  no  more  connected  with  it,  in 
any  respect  whatever,  than  the  court  of  a  foreign  State.  If  this 
hypothesis  be  just,  the  argument  founded  on  it  is  equally  so;  but 
if  the  hypothesis  be  not  supported  by  the  constitution,  the  argu- 
ment fails  with  it. 

This  hypothesis  is  not  founded  on  any  words  in  the  constitu- 


COHENS  V.  VIRGINIA.  635 

.tion,  which  might  seem  to  countenance  it,  but  on  the  unreason- 
ableness of  giving  a  contrary  construction  to  words  which  seem 
to  require  it;  and  on  the  incompatibility  of  the  application  of  the 
appellate  jurisdiction  to  the  judgments  of  state  courts,  with  that 
constitutional  relation  which  subsists  between  the  government  of 
the  Union  and  the  governments  of  those  States  which  compose  it. 

Let  this  unreasonableness,  this  total  incompatibility,  be  ex- 
amined. 

That  the  United  States  form,  for  many,  and  for  most  impor- 
tant purposes,  a  single  nation,  has  not  yet  been  denied.  In  war, 
we  are  one  people.  In  making  peace,  we  are  one  people.  In  all 
commercial  regulations,  we  are  one  and  the  same  people.  In  many 
other  respects,  the  American  people  are  one;  and  the  govern- 
ment which  is  alone  capable  of  controlling  and  managing  their 
interests,  in  all  these  respects,  is  the  government  of  tlie  Union. 
It  is  their  government,  and  in  that  character  they  have  no  other. 
America  has  chosen  to  be,  in  many  respects,  and  to  many  pur- 
poses, a  nation;  and  for  all  these  purposes  her  government  is  com- 
plete; to  all  these  objects,  it  is  competent.  The  people  have  de- 
clared, that  in  the  exercise  of  all  powers  given  for  these  objects, 
it  is  supreme.  It  can,  then,  in  effecting  these  objects,  legiti- 
mately control  all  individuals  or  governments  within  the  American 
territory.  The  constitution  and  laws  of  a  State,  so  far  as  they 
are  repugnant  to  the  constitution  and  laws  of  the  United  States, 
are  absolutely  void.  These  States  are  constituent  parts  of  the 
United  States.  They  are  members  of  one  great  empire, — for  some 
purposes  sovereign,  for  some  purposes  subordinate. 

In  a  government  so  constituted,  is  it  unreasonable  that  the  ju- 
dicial power  should  be  competent  to  give  efficacy  to  the  constitu- 
tional laws  of  the  legislature?  That  department  can  decide  on  the 
validity  of  the  constitution  or  law  of  a  State,  if  it  be  repugnant 
to  the  constitution  or  to  a  law  of  the  United  States.  Is  it  unrea- 
sonable that  it  should  also  be  empowered  to  decide  on  the  judg- 
ment of  a  state  tribunal  enforcing  such  unconstitutional  law?  Is 
it  so  very  unreasonable  as  to  furnish  a  justification  for  controlling 
the  words  of  the  constitution? 

We  think  it  is  not.  "We  think  that  in  a  government  acknowl- 
edgedly  supreme,  with  respect  to  objects  of  vital  interest  to  the 
nation,  there  is  nothing  inconsistent  with  sound  reason,  nothing 
incompatible  with  the  nature  of  government,  in  making  all  its 
departments  supreme,  so  far  as  respects  those  objects,  and  so  far  as 
is  necessary  to  their  attainment.  The  exercise  of  the  appellate 
power  over  those  judgments  of  the  state  tribunals  which  may  con- 


G36  CASES  ON  CONSTITUTIONAL  LAW. 

travene  the  constitution  or  laws  of  the  United  States,  is,  we  believe, 
essential  to  the  attainment  of  those  objects. 

The  propriety  of  intrusting  the  construction  of  the  constitution, 
and  laws  made  in  pursuance  thereof,  to  the  judiciary  of  the  Union, 
has  not,  we  believe,  as  yet,  been  drawn  into  question.  It  seems 
to  be  a  corollary  from  this  political  axiom,  that  the  federal  courts 
should  either  possess  exclusive  jurisdiction  in  such  cases,  or  a 
power  to  revise  the  judgments  rendered  in  them  by  the  state 
tribunals.  If  the  federal  and  state  courts  have  concurrent  juris- 
diction in  all  cases  arising  under  the  constitution,  laws,  and 
treaties  of  the  United  States;  and  if  a  case  of  this  description 
brought  in  a  state  court  cannot  be  removed  before  judgment,  nor 
revised  after  judgment,  then  the  construction  of  the  constitution, 
laws,  and  treaties  of  the  United  States  is  not  confided  particularly 
to  their  judicial  department,  but  is  confided  equally  to  that  de- 
partment and  to  the  state  courts,  however,  they  may  be  consti- 
tuted. "Thirteen  independent  courts,''  says  a  very  celebrated 
statesman  (and  we  have  now  more  than  twenty  such  courts),  "of 
final  jurisdiction  over  the  same  causes,  arising  upon  the  same  laws, 
is  a  hydra  of  government,  from  which  nothing  but  contradiction 
and  confusion  can  proceed." 

Dismissing  the  unpleasant  suggestion,  that  any  motives  which 
may  not  be  fairly  avowed,  or  which  ought  not  to  exist,  can  ever 
influence  a  State  or  its  courts,  the  necessity  of  uniformity,  as  well 
as  correctness  in  expounding  the  constitution  and  laws  of  the 
United  States,  would  itself  suggest  the  propriety  of  vesting  in 
some  single  tribunal  the  power  of  deciding,  in  the  last  resort,  all 
cases  in  which  they  are  involved. 

We  are  not  restrained,  then,  by  the  political  relations  between 
the  general  and  state  governments,  from  construing  the  words  of 
the  constitution,  defining  the  judicial  power,  in  their  true  sense. 
We  are  not  bound  to  construe  them  more  restrietively  than  they 
naturally  import. 

They  give  to  the  supreme  court  appellate  jurisdiction  in  all  cases 
arising  under  the  constitution,  laws,  and  treaties  of  the  United 
States.  The  words  are  broad  enough  to  comprehend  all  cases  of 
this  description,  in  whatever  court  they  may  be  decided.  .  .  . 
Let  the  nature  and  objects  of  our  Union  be  considered;  let  the 
great  fundamental  principles  on  which  the  fabric  stands  be  ex- 
amined; and  we  think  the  result  must  be  that  there  is  nothing  so 
extravagantly  absurd  in  giving  to  the  court  of  the  nation  the  power 
of  revising  the  decisions  of  local  tribunals,  on  questions  which 


UNITED  STATES  v.  TEXAS.  637 

affect  the  nation,  as  to  require  that  words  which  import  this  power 
should  be  restricted  by  a  forced  construction.     .     .     . 

Motion  Denied. 
The  cause  was  thereupon  argued  on  the  merits.     .     .     . 

Judgment  Affirmed. 


UNITED  STATES   v.   TEXAS. 
143  U.  S.,  621.    Decided  1892. 

[The  facts  are  sufficiently  stated  in  the  opinion  of  the  court.] 
Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 
•  This  suit  was  brought  by  original  bill  in  this  court  pursuant  to 
the  act  of  May  2,  1890,  providing  a  temporary  government  for  the 
Territory  of  Oklahoma.  The  25th  section  recites  the  existence 
of  a  controversy  between  the  United  States  and  the  State  of  Texas 
as  to  the  ownership  of  what  is  designated  on  the  map  of  Texas  as 
Greer  County,  and  provides  that  the  act  shall  not  be  construed  to 
apply  to  that  county  until  the  title  to  the  same  has  been  adjudi- 
cated and  determined  to  be  in  the  United  States.  In  order  that 
there  might  be  a  speedy  and  final  judicial  determination  of  this 
controversy  the  Attorney-General  of  the  United  States  was  author- 
ized and  directed  to  commence  and  prosecute  on  behalf  of  the 
United  States  a  proper  suit  in  equity  in  this  court  against  the  State 
of  Texas,  setting  forth  the  title  of  the  United  States  to  the  country 
lying  between  the  North  and  South  Forks  of  the  Red  River  where 
the  Indian  Territory  and  the  State  of  Texas  adjoin,  east  of  the 
one  hundredth  degree  of  longitude,  and  claimed  by  the  State  of 
Texas  as  within  its  boundary.    26  Stat.,  81,  92,  c.  182,  §  25. 

The  State  of  Texas  appeared  and  filed  a  demurrer,  and,  also, 
an  answer  denying  the  material  allegations  of  the  bill.  The  case 
is  now  before  the  court  only  upon  the  demurrer,  the  principal 
grounds  of  which  are:  That  the  question  presented  is  political  in 
its  nature  and  character,  and  not  susceptible  of  judicial  deter- 
mination by  this  court  in  the  exercise  of  its  jurisdiction  as  con- 
ferred by  the  Constitution  and  laws  of  the  United  States;  that 
it  is  not  competent  for  the  general  government  to  bring  suit  against 
a  State  of  the  Union  in  one  of  its  own  courts,  especially  when  the 
right  to  be  maintained  is  mutually  asserted  by  the  United  States 
and  the  State,  namely,  the  ownership  of  certain  designated  terri- 
tory; and  that  the  plaintiff's  cause  of  action,  being  a  suit  to  recover 


638  CASES  ON  CONSTITUTIONAL  LAW. 

real  property,  is  legal  and  not  equitable,  and,  consequently,  so 
much  of  the  act  of  May  2,  1890,  as  authorizes  and  directs  the 
prosecution  of  a  suit  in  equity  to  determine  the  rights  of  the 
United  States  to  the  territory  in  question  is  unconstitutional  and 
void.  .  .  .  [Here  follows  a  history  of  the  conflicting  claims 
of  the  United  States  and  Texas.] 

The  bill  alleges  thait  the  State  of  Texas,  without  right,  claims, 
has  talien  possession  of,  and  endeavors  to  extend  its  laws  and  juris- 
diction over,  the  disputed  territory,  in  violation  of  the  treaty  rights 
of  the  United  States;  that,  during  the  year  1887,  it  gave  public 
notice  of  its  purpose  to  survey  and  place  upon  the  market  for  sale, 
and  otherwise  dispose  of,  that  territory;  and  that,  in  consequence 
of  its  proceeding  to  eject  bona  fide  settlers  from  certain  portions 
thereof.  President  Cleveland,  by  proclamation  issued  December  30, 
1887,  warned  all  persons,  whether  claiming  to  act  as  officers  of  the 
county  of  Greer,  or  otherwise,  against  selling  or  disposing  of,  or 
attempting  to  sell  or  dispose  of,  any  of  said  lands,  or  from  exercis- 
ing or  attempting  to  exercise  any  authority  over  them,  and  "against 
purchasing  any  part  of  said  territory  from  any  person  or  persons 
whatever."    25  Stat.,  1483. 

The  relief  asked  is  a  decree  determining  the  true  line  between 
the  United  States  and  the  State  of  Texas,  and  whether  the  land 
constituting  what  is  called  "Greer  County"  is  within  the  boundary 
and  jurisdiction  of  the  United  States  or  of  the  State  of  Texas. 
The  government  prays  that  its  rights,  as  asserted  in  the  bill,  be 
established,  and  that  it  have  such  other  relief  as  the  nature  of  the 
case  may  require. 

In  support  of  the  contention  that  the  ascertainment  of  the 
boundary  between  a  Territory  of  the  United  States  and  one  of  the 
States  of  the  Union  is  political  in  its  nature  and  character,  and 
not  susceptible  of  judicial  determination,  the  defendant  cites  Fos- 
ter V.  Neilson,  2  Pet.,  253,  307,  309;  Cherokee  Nation  v.  Georgia, 
5  Pet.,  1,  21;  United  States  v.  Arredondo,  6  Pet.,  691,  711;  and 
Garcia  v.  Lee,  12  Pet.,  511,  517. 

In  Foster  v.  Neilson,  which  was  an  action  to  recover  certain 
lands  in  Louisiana,  the  controlling  question  was  as  to  whom  the 
country  between  the  Iberville  and  the  Perdido  rightfully  belonged 
at  the  time  the  title  of  the  plaintiff  in  that  case  was  acquired.  The 
United  States,  the  court  said,  had  perse veringly  insisted  that  by 
the  treaty  of  St.  Udefonso,  made  October  1,  1800,  Spain  ceded  the 
disputed  territory  as  part  of  Louisiana  to  France,  and  that  France 
by  the  treaty  of  Paris  of  1803  ceded  it  to  the  United  States.  Spain 
insisted  that  the  cession  to  France  comprehended  only  the  territory 


UNITED  STATES  v.  TEXAS.  639 

which  was  at  that  time  denominated  Louisiana.  After  examining 
various  articles  of  the  treaty  of  St.  Ildefonso,  Chief  Justice  Mar- 
shall, speaking  for  the  court,  said:  "In  a  controversy  between  two 
nations  concerning  national  boundary,  it  is  scarcely  possible  that 
the  courts  of  either  should  refuse  to  abide  by  the  measures  adopted 
by  its  own  government.  There  being  no  common  tribunal  to  de- 
cide between  them,  each  determines  for  itself  on  its  own  rights, 
and  if  they  cannot  adjust  their  differences  peaceably,  the  right 
remains  with  the  strongest.  The  judiciary  is  not  that  department 
of  the  government  to  which  the  assertion  of  its  interests  against 
foreign  powers  is  confided;  and  its  duty  commonly  is  to  decide 
upon  individual  rights,  according  to  those  principles  which  the 
political  departments  of  the  nation  have  established.  If  the  course 
of  the  nation  has  been  a  plain  one,  its  courts  would  hesitate  to 
pronounce  it  erroneous."  Again:  "After  these  acts  of  sovereign 
power  over  the  territory  in  dispute,  asserting  the  American  con- 
struction of  the  treaty,  by  which  the  government  claims  it,  to 
maintain  the  opposite  construction  in  its  own  courts  would  cer- 
tainly be  an  anomaly  in  the  history  and  practice  of  nations.  If 
those  departments  which  are  trusted  with  the  foreign  intercourse 
of  the  nation,  which  assert  and  maintain  its  interests  against  for- 
eign powers,  have  unequivocally  asserted  its  rights  of  dominion 
over  a  country  of  which  it  is  in  possession,  and  which  it  claims 
under  a  treaty;  if  the  legislature  has  acted  on  the  construction 
thus  asserted,  it  is  not  in  its  own  courts  that  this  construction  is 
to  be  denied.  A  question  like  this  respecting  the  boundaries  of 
nations,  is,  as  has  been  truly  said,  more  a  political  than  a  legal 
question;  and,  in  its  discussion,  the  courts  of  every  country  must 
respect  the  pronounced  will  of  the  legislature." 

In  United  States  v.  Arredondo  the  court,  referring  to  Foster  v, 
Neilson,  said:  "This  court  did  not  deem  the  settlement  of  boun- 
daries a  judicial  but  a  political  question — that  it  was  not  its  duty 
to  lead,  but  to  follow  the  action  of  the  other  departments  of  the 
government."  The  same  principles  were  recognized  in  Cherokee 
Nation  v.  Georgia  and  Garcia  v.  Lee. 

These  authorities  do  not  control  the  present  case.  They  relate 
to  questions  of  boundary  between  independent  nations,  and  have 
no  application  to  a  question  of  that  character  arising  between  the 
General  Government  and  one  of  the  States  composing  the  Union, 
or  between  two  States  of  the  Union.  By  the  Articles  of  Confed- 
eration, Congress  was  made  "the  last  resort  on  appeal  in  all  dis- 
putes and  differences"  then  subsisting  or  which  thereafter  might 
arise  "between  two  or  more  States  concerning  boundary,  jurisdic- 


640  CASES  ON  CONSTITUTIONAL  LAW. 

tion,  or  any  other  cause  whatever;"  the  authority  so  conferred  to 
be  exercised  by  a  special  tribunal  to  be  organized  in  the  mode  pre- 
scribed in  those  Articles,  and  its  judgment  to  be  final  and  con- 
clusive. Art.  9.  At  the  time  of  the  adoption  of  the  Constitution, 
there  existed,  as  this  court  said  in  Khode  Island  v.  Massachusetts, 
12  Pet.,  657,  723,  724,  controversies  between  eleven  States,  in  re- 
spect to  boundaries,  which  had  continued  from  the  first  settle- 
ment of  the  colonies.  The  necessity  for  the  creation  of  some  tri- 
bunal for  the  settlement  of  these  and  like  controversies  that  might 
arise,  under  the  new  government  to  be  formed,  must,  therefore, 
have  been  perceived  by  the  framers  of  the  Constitution,  and,  con- 
sequently, among  the  controversies  to  which  the  judicial  power  of 
the  United  States  was  extended  by  the  Constitution,  we  find  those 
between  two  or  more  States.  And  that  a  controversy  between  two 
or  more  States,  in  respect  to  boundary,  is  one  to  which,  under  the 
Constitution,  such  judicial  power  extends,  is  no  longer  an  open 
question  in  this  court.  The  cases  of  Ehode  Island  v.  Massachu- 
setts, 12  Pet.,  657;  New  Jersey  v.  New  York,  5  Pet.,  284,  290;  Mis- 
souri V.  Iowa,  7  How.,  660;  Florida  v.  Greorgia,  17  How.,  478; 
Alabama  v.  Georgia,  23  How.,  505;  Virginia  v.  West  Virginia,  11 
Wall,  39,  55;  Missoiiri  v.  Kentucky,  11  Wall.,  395;  Indiana  v. 
Kentucky,  136  U.  S.,  479;  and  Nebraska  v.  Iowa,  ante,  359,  were 
all  original  suits,  in  this  court,  for  the  judicial  determination  of  dis- 
puted boundary  lines  between  States.  In  New  Jersey  v.  New  York, 
5  Pet.,  284,  290,  Chief  Justice  Marshall  said:  "It  has  then  been 
settled  by  our  predecessors,  on  great  deliberation,  that  this  court 
may  exercise  its  original  jurisdiction  in  suits  against  a  State,  under 
the  authority  conferred  by  the  Constitution  and  existing  acts  of 
Congress."  And  in  Virginia  v.  West  Virginia,  it  was  said  by  Mr. 
Justice  Miller  to  be  the  esitablished  doctrine  of  this  court,  "that 
it  has  jurisdiction  of  questions  of  boundary  between  two  States  of 
this  Union,  and  that  this  jurisdiction  is  not  defeated,  because  in 
deciding  that  question  it  becomes  necessary  to  examine  into  and 
construe  compacts  or  agreements  between  those  States,  or  because 
the  decree  which  the  court  may  render,  affects  the  territorial  limits 
of  the  political  jurisdiction  and  sovereignty  of  the  States  which 
are  parties  to  the  proceeding."  So,  in  Wisconsin  v.  Pelican  Ins. 
Co.,  127  U.  S.,  265,  287,  288:  "By  the  Constitution,  therefore, 
this  court  has  original  jurisdiction  of  suits  brought  by  a  State 
against  citizens  of  another  State,  as  well  as  of  controversies  between 
two  States.  ...  As  to  ^controversies  between  two  or  more 
States.'  The  most  numerous  class  of  which  this  court  has  enter- 
tained jurisdiction  is  that  of  controversies  between  two  States  as 


UNITED  STATES  v.  TEXAS.  641 

to  the  boundaries  of  their  territory,  such  as  were  determined  be- 
fore the  Eevolution  by  the  King  in  Council,  and  under  the  Articles 
of  Confederation  (while  there  was  no  national  "judiciary)  by  com- 
mittees or  commissioners  appointed  by  Congress." 

In  view  of  these  cases,  it  cannot,  with  propriety,  be  said  that  a 
question  of  boundary  between  a  Territory  of  the  United  States  and 
one  of  the  States  of  the  Union  is  of  a  political  nature,  and  not 
susceptible  of  judicial  determination  by  a  court  having  jurisdic- 
tion of  such  a  controversy.  The  important  question  therefore  is, 
whether  this  court  can,  under  the  Constitution,  take  cognizance 
of  an  original  suit  brought  by  the  United  States  against  a  State 
to  determine  the  boundary  between  one  of  the  Territories  and 
such  State.  Texas  insists  that  no  such  jurisdiction  has  been  con- 
ferred upon  this  court,  and  that  the  only  mode  in  which  the  pres- 
ent dispute  can  be  peaceably  settled  is  by  agreement,  in  some  form, 
between  the  United  States  and  that  State.  Of  course,  if  no  such 
agreement  can  be  reached — and  it  seems  that  one  is  not  probable — 
and  if  neither  party  will  surrender  its  claim  of  authority  and  juris- 
diction over  the  disputed  territory,  the  result,  according  to  the 
defendant's  theory  of  the  Constitution,  must  be  that  the  United 
States,  in  order  to  effect  a  settlement  of  this  vexed  question  of 
boundary,  must  bring  its  suit  in  one  of  the  courts  of  Texas — that 
State  consenting  that  its  courts  may  be  open  for  the  assertion  of 
claims  against  it  by  the  United  States — or  that,  in  the  end,  there 
must  be  a  trial  of  physical  strength  between  the  government  of  the 
Union  and  Texas.  The  first  alternative  is  unwarranted  both  by  the 
letter  and  spirit  of  the  Constitution.  Mr.  Justice  Story  has  well 
said:  "It  scarcely  seems  possible  to  raise  a  reasonable  doubt  as  to 
the  propriety  of  giving  to  the  national  courts  jurisdiction  of  cases 
in  which  the  United  States  are  a  party.  It  would  be  a  perfect 
novelty  in  the  history  of  national  jurisprudence,  as  well  as  of 
public  law,  that  a  sovereign  had  no  authority  to  sue  in  his  own 
courts.  Unless  this  power  were  given  to  the  United  States,  the 
enforcement  of  all  their  rights,  powers,  contracts  and  privileges 
in  their  sovereign  capacity  would  be  at  the  mercy  of  the  States. 
They  must  be  enforced,  if  at  all,  in  the  State  tribunals."  Story 
Const.,  §  1674.  The  second  alternative,  above  mentioned,  has  no 
place  in  our  constitutional  system,  and  cannot  be  contemplated 
by  any  patriot  except  with  feelings  of  deep  concern. 

The  cases  in  this  court  show  that  the  framers  of  the  Constitution 
did  provide,  by  that  instrument,  for  the  judicial  determination  of 
all  cases  in  law  and  equity  between  two  or  more  States,  including 
those  involving  questions  of  boundary.    Did  they  omit  to  provide 

41 


G42  CASES  ON  CONSTITUTIONAL  LAW. 

for  the  judicial  determination  of  controversies  arising  between 
the  United  States  and  one  or  more  of  the  States  of  the  Union? 
This  question  is  in'  effect  answered  by  United  States  v.  Xorth  Caro- 
lina, 136  U.  S.,  211.  That  was  an  action  of  debt  brought  in  this 
court  by  the  United  States  against  the  State  of  North  Carolina, 
upon  certain  bonds  issued  by  that  State.  The  State  appeared,  the 
case  was  determined  here  upon  its  merits,  and  judgment  was  ren- 
dered for  the  State.  It  is  true  that  no  question  was  made  as  to  the 
jurisdiction  of  this  court,  and  nothing  was  therefore  said  in  the 
opinion  upon  that  subject.  But  it  did  not  escape  the  attention 
of  the  court,  and  the  judgment  would  not  have  been  rendered 
except  upon  the  theory  that  this  court  has  original  jurisdiction  of 
a  suit  by  the  United  States  against  a  State.  As,  however,  the 
question  of  jurisdiction  is  vital  in  this  case,  and  is  distinctly  raised, 
it  is  proper  to  consider  it  upon  its  merits.  .  .  .  [Here  follows 
a  recital  of  art.  3,  §  3,  of  the  Constitution,  and  the  11th  amend- 
ment.] 

It  is  apparent  upon  the  face  of  these  clauses  that  in  one  class 
of  cases  the  jurisdiction  of  the  courts  of  the  Union  depends  "on 
the  character  of  the  cause,  whoever  may  be  the  parties,"  and,  in 
the  other,  on  the  character  of  the  parties,  whatever  may  be  the 
subject  of  controversy.  Cohens  v.  Virginia,  6  Wheat.,  26-1,  378,  393. 
The  present  suit  falls  in  each  class,  for  it  is,  plainly,  one  arising 
under  the  Constitution,  laws  and  treaties  of  the  United  States, 
and,  also,  one  in  which  the  United  States  is  a  party.  It  is,  there- 
fore, one  to  which,  by  the  express  words  of  the  Constitution,  the 
judicial  power  of  the  United  States  extends.  That  a  Circuit  Court 
of  the  United  States  has  not  jurisdiction,  under  existing  statutes, 
of  a  suit  by  the  United  States  against  a  State,  is  clear;  for  by  the 
Eevised  Statutes  it  is  declared — as  was  done  by  the  Judiciary  Act 
of  1789 — that  "the  Supreme  Court  shall  have  exclusive  jurisdic- 
tion of  all  controversies  of  a  civil  nature  where  a  State  is  a  party, 
except  between  a  State  and  its  citizens,  or  between  a  State  and 
citizens  of  other  States  or  aliens,  in  which  latter  cases  it  shall  have 
original,  but  not  exclusive,  jurisdiction."  Rev.  Stat.,  §  687;  Act 
of  September  24,  1789,  c.  20,  §  13;  1  Stat.,  80.  Such  exclusivfi 
jurisdiction  was  given  to  this  court,  because  it  best  comported 
with  the  dignity  of  a  State,  that  a  case  in  which  it  was  a  party 
should  be  determined  in  the  highest,  rather  than  in  a  subordinate 
judicial  tribunal  of  the  nation.  Why  then  may  not.  this  court  take 
original  cognizance  of  the  present  suit  involving  a  question  of 
boundary  between  a  Territory  of  the  United  States  and  a  State? 

The  words  in  the  Constitution,  "in  all  cases    ...    in  which 


UNITED  STATES  V.  TEXAS.  643 

a  State  shall  be  party,  the  Supreme  Court  shall  have  original  juris- 
diction," necessarily  refer  to  all  cases  mentioned  in  the  preceding 
clause  in  which  a  State  may  be  made,  of  right,  a  party  defendant, 
or  in  which  a  Sitate  may,  of  right,  be  a  party  plaintiff.  It  is  ad- 
mitted that  these  words  do  not  refer  to  suits  brought  against  a 
State  by  its  own  citizens  or  by  citizens  of  other  States,  or  by  citi- 
zens or  subjects  of  foreign  States,  even  where  such  suits  arise 
under  the  Constitution,  laws  and  treaties  of  the  United  States, 
because  the  judicial  power  of  the  United  States  does  not  extend 
to  suits  of  individuals  against  States.  Hans  v.  Louisiana,  134 
U.  S.,  1,  and  authorities  there  cited;  North  Carolina  v.  Temple, 
134  U.  S.,  22,  30.  It  is,  however,  said  that  the  words  last  quoted 
refer  only  to  suits  in  which  a  State  is  a  party,  and  in  which,  also, 
the  opposite  party  is  another  State  of  the  Union  or  a  foreign  State. 
This  cannot  be  correct,  for  it  must  be  conceded  that  a  State  can 
bring  an  original  suit  in  this  court  against  a  citizen  of  another 
State.  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.,  265,  287.  Be- 
sides, unless  a  State  is  exempt  altogether  from  suit  by  the  United 
States,  we  do  not  perceive  upon  what  sound  rule  of  construction 
suits  brought  by  the  United  States  in  this  court — especially  if  they 
be  suits  the  correct  decision  of  which  depends  upon  the  Consiti- 
tution,  laws  or  treaties  of  the  United  States — are  to  be  excluded 
from  its  original  jurisdiction  as  defined  in  the  Constitution.  That 
instrument  extends  the  judicial  power  of  the  United  States  "to 
all  cases,"  in  law  and  equity,  arising  under  the  Constitution,  laws 
and  treaties  of  the  United  States,  and  to  controversies  in  which 
the  United  States  shall  be  a  party,  and  confers  upon  this  court 
original  jurisdiction  "in  all  cases"  "in  which  a  State  shall  be 
party,"  that  is,  in  all  cases  mentioned  in  the  preceding  clause  in 
which  a  State  may,  of  right,  be  made  a  party  defendant,  as  well 
as  in  all  cases  in  which  a  State  may,  of  right,  institute  a  suit  in  a 
court  of  the  United  States.  The  present  case  is  of  the  former 
class.  We  cannot  assume  that  the  framers  of  the  Constitution,, 
while  extending  the  judicial  power  of  the  United  States  to  con- 
troversies between  two  or  more  States  of  the  Union,  and  between  a 
State  of  the  Union  and  foreign  States,  intended  to  exempt  a  State 
altogether  from  suit  by  the  General  Government.  They  could  not 
have  overlooked  the  possibility  that  controversies,  capable  of  judi- 
cial solution,  might  arise  between  the  United  States  and  some  of 
the  States,  and  that  the  permanence  of  the  Union  might  be  en- 
dangered if  to  some  tribunal  was  not  intrusted  the  power  to  deter- 
mine them  according  to  the  recognized  principles  of  law.  And  to 
what  tribunal  could  a  trust  so  momentous  be  more  appropriately 


4 


644  CASE^S  ON  CONSTITUTIONAL  LAW. 

committed  than  to  that  which  the  people  of  the  United  States,  in 
order  to  form  a  more  perfect  Union,  establish  justice  and  insure 
domestic  tranquillity,  have  constituted  with  authority  to  speak  for 
all  the  people  and  all  the  States,  upon  questions  before  it  to  which 
the  judicial  power  of  the  nation  extends?  It  would  be  difficult 
to  suggest  any  reason  why  this  court  should  have  jurisdiction  to 
determine  questions  of  boundary  between  two  or  more  States,  but 
not  jurisdiction  of  controversies  of  like  character  between  the 
United  States  and  a  State.  .  .  .  [Here  is  given  an  extract 
from  Hans  v.  Louisiana,  134  U.  S.,  1.] 

That  case  and  others  in  this  court  relating  to  the  suability  of 
States,  proceeded  upon  the  broad  ground  that  "it  is  inherent  in 
the  nature  of  sovereignty  not  to  be  amenable  to  the  suit  of  an 
individual  without  its  consent." 

The  question  as  to  the  suability  of  one  government  by  another 
government  rests  upon  wholly  different  grounds.  Texas  is  not 
called  to  the  bar  of  this  court  at  the  suit  of  an  individual,  but  at 
the  suit  of  the  government  established  for  the  common  and  equal 
benefit  of  the  people  of  all  the  States.  The  submission  to  judicial 
solution  of  controversies  arising  between  these  two  governments, 
"each  sovereign,  with  respect  to  the  objects  committed  to  it,  and 
neither  sovereign  with  respect  to  the  objects  committed  to 
the  other,"  McCulloch  v.  State  of  Maryland,  4  "Wheat.,  316, 
400,  410,  but  both  subject  to  the  supreme  law  of  the  land,  does 
no  violence  to  the  inherent  nature  of  sovereignty.  The  States 
of  the  Union  have  agreed,  in  the  Constitution,  that  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  arising  under 
the  Constitution,  laws  and  treaties  of  the  United  States,  without 
regard  to  the  character  of  the  parties  (excluding,  of  course,  suits 
against  a  State  by  its  own  citizens  or  by  citizens  of  other  States, 
or  by  citizens  or  subjects  of  foreign  States),  and  equally  to  con- 
troversies to  which  the  United  States  shall  be  a  party,  without 
regard  to  the  subject  of  such  controversies,  and  that  this  court 
may  exercise  original  jurisdiction  in  all  such  cases,  "in  which  a 
State  shall  be  party,"  without  excluding  those  in  which  the  United 
States  may  be  the  opposite  party.  The  exercise,  therefore,  by  this 
court,  of  such  original  jurisdiction  in  a  suit  brought  by  one  State 
against  another  to  determine  the  boundary  line  between  them,  or 
in  a  suit  brought  by  the  United  States  against  a  State  to  deter- 
mine the  boundary  between  a  Territory  of  the  United  States  and 
that  State,  so  far  from  infringing,  in  either  case,  upon  the  sov- 
ereignty, is  with  the  consent  of  the  State  sued.    Such  consent  was 


UNITED  STATES  V.  TEXAS.  645 

given  by  Texas  when  admitted  into  the  Union  upon  an'equal  foot- 
ing in  all  respeots  with  the  other  States. 

We  are  of  opinion  that  this  court  has  jurisdiction  to  determine 
the  (disputed  question  of  boundary  between  the  United  States  and 
Texas. 

It  is  contended  that,  even  if  this  court  had  jurisdiction,  the  dis- 
pute as  to  boundary  must  be  determined  in  an  action  at  law,  and 
that  the  act  of  Congress  requiring  the  institution  of  this  suit  in 
equity  is  unconstitutional  and  void,  as,  in  effect,  declaring  that 
legal  rights  shall  be  tried  and  determined  as  if  they  were  equitable 
rights.  [Here  follows  a  discussion  of  Fowler  v.  Lindsey,  3  Dall., 
411,  and  Rhode  Island  v.  Massachusetts,  12  Pet.,  657.]  In  view 
of  these  precedents,  it  is  scarcely  necessary  for  the  court  to  exam- 
ine this  question  anew.  Of  course,  if  a  suit  in  equity  is  appropriate 
for  determining  the  boundary  between  two  States,  there  can  be 
no  objection  to  the  present  suit  as  being  in  equity  and  not  at  law. 

It  is  not  a  suit  simply  to  determine  the  legal  title  to,  and  the 
ownership  of,  the  lands  constituting  Greer  County.  It  involves 
the  larger  question  of  governmental  authority  and  jurisdiction 
over  that  territory.  The  United  States,  in  effect,  asks  the  specific 
execution  of  the  terms  of  the  treaty  of  1819,  to  the  end  that  the 
disorder  and  public  mischiefs  that  will  ensue  from  a  continuance 
of  the  present  condition  of  things  may  be  prevented.  The  agree- 
ment, embodied  in  the  treaty,  to  fix  the  lines  with  precision,  and 
to  place  landmarks  to  designate  the  limits  of  the  two  contracting 
nations,  could  not  well  be  enforced  by  an  action  at  law.  The  bill 
and  amended  bill  make  a  case  for  the  interposition  of  a  court  of 
equity.  Demurrer  overruled. 

Mr.  Chief  Justice  Fullee,  with  whom  concurred  Me.  Justice 
Lamas,  dissenting. 

Me.  Justice  Lamae  and  myself  are  unable  to  concur  in  the 
decision  just  announced. 

This  court  has  original  jurisdiction  of  two  classes  of  cases  only, 
those  affecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  a  party. 

The  judicial  power  extends  to  '^controversies  between  two  or 
more  States;"  "between  a  State  and  citizens  of  another  State;" 
and  'T)etween  a  State  or  the  citizens  thereof,  and  foreign  States, 
citizens  or  subjects."  Our  original  jurisdiction,  which  depends 
solely  upon  the  character  of  the  parties,  is  confined  to  the  cases 


646  CASES  ON  CONSTITUTIONAL  LAW. 

enumerated,  in  which  a  State  may  be  a  party,  and  this  is  not  one 
of  them. 

The  judicial  power  also  extends  to  controversies  to  which  the 
United  States  shall  be  a  party,  but  such  controversies  are  not  in- 
cluded in  the  grant  of  original  jurisdiction.  To  the  controversy 
here  the  United  States  is  a  party. 

We  are  of  opinion,  therefore,  that  this  case  it  not  within  the 
original  jurisdiction  of  the  court. 


XV.    POLITICAL  QUESTIONS. 


LUTHER    V.    BORDEN. 
7  Howard,  1.    Decided  1848. 

The  first  of  these  cases  came  up  by  a  writ  of  error,  the  second 
upon  a  certificate  of  division  of  opinion  by  the  judges  of  tlie  cir- 
cuit court  of  the  United  States  for  the  district  of  Rhode  Island. 
The  first  case  is  stated  in  the  opinion  of  the  court.  The  second 
requires  no  statement,  as  it  went  off,  for  want  of  Jurisdiction.  .  .  . 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 
This  case  has  arisen  out  of  the  unfortunate  political  differ- 
ences which  agitated  the  people  of  Rhode  Island  in  1841  and  1843, 
It  is  an  action  of  trespass  brought  by  Martin  Luther,  the  plaint- 
iff in  error,  against  Luther  M.  Borden  and  other  defendants,  in 
the  circuit  court  of  the  United  States  for  the  district  of  Rhode 
Island,  for  breaking  and  entering  the  plaintiff's  house.  The  de- 
fendants justify  upon  the  ground  that  large  numbers  of  men  were 
assembled  in  different  parts  of  the  State  for  the  purpose  of  over- 
throwing the  government  by  military  force,  and  were  actually 
levying  war  upon  the  State;  that,  in  order  to  defend  itself  from 
this  insurrection,  the  State  was  declared  by  competent  authority 
to  be  under  martial  law;  that  the  plaintiff  was  engaged  in  the  in- 
surrection; and  that  the  defendants,  being  in  the  military  service 
of  the  State,  by  command  of  their  superior  officer,  broke  and 
entered  the  house  and  searched  the  rooms  for  the  plaintiff,  who 
was  supposed  to  be  there  concealed,  in  order  to  arrest  him,  doing 
as  little  damage  as  possible.  The  plaintiff  replied,  that  the  tres- 
pass was  committed  by  the  defendants  of  their  own  proper  wrong, 
and  without  any  such  cause;  and  upon  the  issue  joined  on  this 
replication,  the  parties  proceeded  to  trial,  .  .  .  The  existence 
and  authority  of  the  government  under  which  the  defendants  acted, 
was  called  in  question;  and  the  plaintiff  insists,  that,  before  the 
acts  complained  of  were  committed,  that  government  had  been  dis- 

647 


V 


648  CASES  ON  CONSTITUTIONAL  LAW. 

placed  and  annulled  by  the  people  of  Ehode  Island,  and  that  the 
plaintiff  was  engaged  in  supporting  the  lawful  authority  of  the 
State,  and  the  defendants  themselves  were  in  arms  against  it.     .     . 

The  fourth  section  of  the  fourth  article  of  the  constitution  of 
the  United  States  provides  that  the  United  States  shall  guarantee 
to  every  State  in  the  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion;  and  on  the  applica- 
tion of  the  legislature  or  of  the  executive,  (when  the  legislature 
cannot  be  convened)   against  domestic  violence. 

Under  this  article  of  the  constitution  it  rests  with  congress  to 
decide  what  government  is  the  established  one  in  a  State.  For 
as  the  United  States  guarantee  to  each  State  a  republican  govern- 
ment, congress  must  necessarily  decide  what  government  is  estab- 
lished in  the  State  before  it  can  determine  whether  it  is  republican 
or  not.  And  when  the  senators  and  representatives  of  a  State  are 
admitted  into  the  councils  of  the  Union,  the  authority  of  the  gov- 
ernment under  which  they  are  appointed,  as  well  as  its  republican 
character,  is  recognized  by  the  proper  constitutional  authority. 
And  its  decision  is  binding  on  every  other  department  of  the  gov- 
ernment, £ind  could  not  be  questioned  in  a  judicial  tribunal.  It 
is  true  that  the  contest  in  this  case  did  not  last  long  enough  to 
bring  the  matter  to  this  issue;  and  as  no  senators  or  representatives 
were  elected  under  the  authority  of  the  government  of  which  Mr. 
Dorr  vras  the  head,  congress  was  not  called  upon  to  decide  the  con- 
troversy. Yet  the  right  to  decide  is  placed  there,  and  not  in  the 
courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article  of 
the  constitution,  providing  for  cases  of  domestic  violence.  It 
rested  with  congress,  too,  to  determine  upon  the  means  proper  to 
be  adopted  to  fulfill  this  guarantee.  They  might,  if  they  had 
deemed  it  most  advisable  to  do  so,  have  placed  it  in  the  power  of 
a  court  to  decide  when  the  contingency  had  happened  which  re- 
quired the  federal  government  to  interfere.  But  congress  thought 
otherwise,  and  no  doubt  wisely;  and  by  the  act  of  February  28, 
1795,  provided  that,  "in  case  of  an  insurrection  in  any  State 
against  the  government  thereof,  it  shall  be  lawful  for  the  Presi- 
dent of  the  United  States,  on  application  of  the  legislature  of  such 
State  or  of  the  executive,  when  the  legislature  cannot  be  con- 
vened, to  call  forth  such  number  of  militia  of  any  other  State  or 
States,  as  may  be  applied  for,  as  he  may  judge  sufficient  to  sup- 
press such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had 
arisen  upon  which  the  government  of  the  United  States  is  bound 


LUTHER  V.  BORDEN.  649 

to  interfere,  is  given  to  the  President.  He  is  to  act  upon  the  appli- 
cation of  the  legislature,  or  of  the  executive,  and  consequently  he 
must  determine  what  body  of  men  constitute  the  legislature,  and 
who  is  the  governor,  before  he  can  act.  The  fact  that  both  parties 
claim  the  right  to  the  government,  cannot  alter  the  case,. for  both 
cannot  be  entitled  to  it.  If  there  is  an  armed  conflict,  like  the  one 
of  which  we  are  speaking,  it  is  a  case  of  domestic  violence,  and 
one  of  the  parties  must  be  in  insurrection  against  the  lawful  gov- 
ernment. And  the  President  must,  of  necessity,  decide  which  is 
the  government,  and  which  party  is  unlawfully  arrayed  against  it, 
before  he  can  perform  the  duty  imposed  upon  him  by  the  act  of 
congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a 
circuit  court  of  the  United  States  authorized  to  inquire  whether 
his  decision  was  right?  Could  the  court,  while  the  parties  were 
actually  contending  in  arms  for  the  possession  of  the  government, 
call  witnesses  before  it,  and  inquire  which  party  represented  a  ma- 
jority of  the  people?  If  it  could,  then  it  would  become  the  duty  of 
the  court  (provided  it  came  to  the  conclusion  that  the  President 
had  decided  incorrectly)  to  discharge  those  who  were  arrested  or 
detained  by  the  troops  in  the  service  of  the  United  States,  or  the 
government  which  the  President  was  endeavoring  to  maintain.  If 
the  judicial  power  extends  so  far,  the  guarantee  contained  in  the 
constitution  of  the  United  States  is  a  guarantee  of  anarchy,  and 
not  of  order.  Yet  if  this  right  does  not  reside  in  the  courts  when 
the  conflict  is  raging — if  the  Judicial  power  is,  at  that  time,  bound 
to  follow  the  decision  of  the  political,  it  must  be  equally  bound 
when  the  contest  is  over.  It  cannot,  when  peace  is  restored,  pun- 
ish as  offenses  and  crimes  the  acts  which  it  before  recognized,  and 
was  bound  to  recognize,  as  lawful. 

.  It  is  true  that  in  this  case  the  militia  were  not  called  out  by 
the  President.  But  upon  the  application  of  the  governor  under 
the  charter  government,  the  President  recognized  him  as  the 
executive  power  of  the  State,  and  took  measures  to  call  out  the 
militia  to  support  his  authority,  if  it  should  be  found  necessary 
for  the  general  government  to  interfere;  and  it  is  admitted  in  the 
argument  that  it  was  the  knowledge  of  this  decision  that  put  an 
end  to  the  armed  opposition  to  the  charter  government,  and  pre- 
vented any  further  efforts  to  establish  by  force  the  proposed  con- 
stitution. The  interference  of  the  President,  therefore,  by  an- 
nouncing his  determination,  was  as  effectual  as  if  the  militia  had 
been  assembled  under  his  orders.  And  it  should  be  equally  au- 
thoritative.   For  certainly  no  court  of  the  United  States,  with  a 


650  CASES  ON  CONSTITUTIONAL  LAW. 

knowledge  of  this  decision,  would  have  been  justified  in  recogniz- 
ing the  opposing  party  as  the  lawful  government,  or  in  treating  as 
wrong-doers  or  insurgents  the  officers  of  the  government  which 
the  President  had  recognized,  and  was  prepared  to  support  by  an 
armed  force.  In  the  case  of  foreign  nations,  the  government  ac- 
knowledged by  the  President  is  always  recognized  in  the  courts  of 
jusitice.  And  this  principle  has  been  applied  by  the  act  of  congress 
to  the  sovereign  States  of  the  Union. 

It  is  said  that  this  power  in  the  President  is  dangerous  to  liberty, 
and  may  be  abused.  All  power  may  be  abused  if  placed  in  un- 
worthy hands.  But  it  would  be  difficult,  we  think,  to  point  out 
any  other  hands  in  which  this  power  would  be  more  safe,  and  at 
the  same  time  equally  effectual.  When  citizens  of  the  same  State 
are  in  arms  against  each  other,  and  the  constituted  authorities 
unable  to  execute  the  laws,  the  interposition  of  the  United  States 
must  be  prompt,  or  it  is  of  little  value.  The  ordinary  course  of 
proceedings  in  courts  of  justice  would  be  utterly  unfit  for  ^he 
crisis.  And  the  elevated  office  of  the  President,  chosen  as  he  is  by 
the  people  of  the  United  States,  and  the  high  responsibility  he 
could  not  fail  to  feel  when  acting  in  a  case  of  so  much  moment, 
appear  -to  furnish  as  strong  safeguards  against  a  wilful  abuse  of 
power  as  human  prudence  and  foresight  could  well  provide.  At 
all  events,  it  is  conferred  upon  him  by  the  constitution  and  laws 
of  the  United  States,  and  must,  therefore,  be  respected  and  en- 
forced in  its  judicial  tribunals. 

A  question  very  similar  to  this  arose  in  the  case  of  Martin  v. 
Mott,  12  Wheat.,  29-31.  The  first  clause  of  the  first  section  of  the 
act  of  February  28,  1795,  of  which  we  have  been  speaking,  author- 
izes the  President  to  call  out  the  militia  to  repel  invasion.  It  is 
the  second  clause  in  the  same  section  which  authorizes  the  call  to 
suppress  an  insurrection  against  a  state  government.  The  power 
given  to  the  President  in  each  case  is  the  same,  with  this  difEer- 
ence  only,  that  it  cannot  be  exercised  by  him  in  the  latter  case, 
except  upon  the  application  of  the  legislature  or  executive  of  the 
State.  The  case  above  mentioned  arose  out  of  a  call  made  by  the 
President,  by  virtue  of  the  power  conferred  by  the  first  clause;  and 
the  court  said  that  "whenever  a  statute  gives  a  discretionary  power 
to  any  person,  to  be  exercised  by  him  upon  his  own  opinion  of  cer- 
tain facts,  it  is  a  sound  rule  of  construction  that  the  statute  con- 
stitutes him  the  sole  and  exclusive  judge  of  the  existence  of  those 
facts."  The  grounds  upon  which  that  opinion  is  maintained  are 
set  forth  in  the  report,  and,  we  think,  are  conclusive.  The  same 
principle  applies  to  the  case  now  before  the  court.    Undoubtedly, 


LUTHER  V.  BORDEN.  651 

if  the  President,  in  exercising  this  power,  shall  fall  into  error,  or 
invade  the  rights  of  the  people  of  the  State,  it  would  be  in  the 
power  of  congress  to  apply  the  proper  remedy.  But  the  courts 
must  administer  the  law  as  they  find  it.     .     .     . 

The  remaining  question  is,  whether  the  defendants,  acting  vinder 
military  orders  issued  under  the  authority  of  the  government,  were 
justified  in  breaking  and  entering  the  plaintiff's  house.  In  rela- 
tion to  the  act  of  the  legislature  declaring  martial  law,  it  is  not 
necessary  in  the  case  before  us  to  inquire  to  what  extent,  nor  under 
what  circumstances,  that  power  may  be  exercised  by  a  State.  Un- 
questionajbly,  a  military  government,  established  as  the  perma- 
nent government  of  the  State,  would  not  be  a  republican  govern- 
ment, and  it  would  be  the  duty  of  congress  to  overthrow  it.  But 
the  law  of  Rhode  Island  evidently  contemplated  no  such  govern- 
ment. It  was  intended  merely  for  the  crisis,  and  to  meet  the  peril 
in  which  the  existing  government  was  placed  bv  the  armed  resist- 
ance to  its  authority.  It  was  so  understood  and  construed  by  the 
state  authorities.  And  unquestionably,  a  State  may  use  its  mili- 
tary power  to  put  down  an  armed  insurrection,  too  strong  to  be 
controlled  by  the  civil  authority.  The  power  is  essential  to  the 
existence  of  every  government,  essential  to  the  preservation  of 
order  and  of  free  institutions,  and  is  as  necessary  to  the  States  of 
this  Union,  as  to  any  other  government.  The  State  itself  must 
determine  what  degree  of  force  the  crisis  demands.  And  if  the 
government  of  Ehode  Island  deemed  the  armed  opposition  so  for- 
midable, and  so  ramified  throughout  the  State  as  to  require  the 
use  of  its  military  force  and  the  declaration  of  martial  law,  we 
see  no  ground  upon  which  this  court  can  question  its  authority.  It 
was  a  state  of  war,  and  the  established  government  resorted  to  the 
rights  and  usages  of  war  to  maintain  itself,  and  to  overcome  the 
unlawful  opposition.  And  in  that  state  of  things,  the  officers 
engaged  in  its  military  service  might  lawfully  arrest  any  one,  who, 
from  the  information  before  them,  they  had  reasonable  grounds 
to  believe  was  engaged  in  the  insurrection,  and  might  order  a 
house  to  be  forcibly  entered  and  searched,  when  there  were  reason- 
able grounds  for  supposing  he  might  be  there  concealed.  Without 
the  power  to  do  this,  martial  law  and  the  military  array  of  the 
government  would  be  mere  parade,  and  rather  encourage  attack 
than  repel  it.  No  more  force,  however,  can  be  used  than  is  neces- 
sary to  accomplish  the  object.  And  if  the  power  is  exercised  for 
the  purposes  of  oppression,  or  any  injury  wilfully  done  to  person 
or  property,  the  party  by  whom,  or  by  whose  order,  it  is  commit- 
ted, would  undoubtedly  be  answerable.     .     .     . 


652  CASES  ON  CONSTITUTIONAL  LAW. 

Much  of  the  argument  on  the  part  of  the  plaintijff  turned  upon 
political  rights  and  political  questions,  upon  which  the  court  has 
been  urged  to  express  an  opinion.  We  decline  doing  so.  The  high 
power  has  been  conferred  on  this  court  of  passing  judgment  upon 
the  acts  of  the  state  sovereignties,  and  of  the  legislative  and  execu- 
tive branches  of  the  federal  government,  and  of  determining 
whether  they  are  beyond  the  limits  of  power  marked  out  for  them 
respectively  by  the  constitution  of  the  United  States.  This  tribunal, 
therefore,  should  be  the  last  to  overstep  the  boundaries  which  limit 
its  own  jurisdiction.  And  while  it  should  always  be  ready  to  meet 
any  question  confided  to  it  by  the  constitution,  it  is  e^qually  its 
•duty  not  to  pass  beyond  its  appropriate  sphere  of  action,  and  to 
take  care  not  to  involve  itself  in  discussions  which  properly  belong 
to  other  forums.  Xo  one,  we  believe,  has  ever  doubted  the  propo- 
sition, that,  according  to  the  institutions  of  this  country,  the  sov- 
ereignty in  every  State  resides  in  the  people  of  the  State,  and 
that  they  may  alter  and  change  their  form  of  government  at  their 
-own  pleasure.  But  whether  they  have  changed  it  or  not,  by 
abolishing  an  old  government,  and  establishing  a  new  one  in  its 
place,  is  a  question  to  be  settled  by  the  political  power.  And  when 
that  power  has  decided,  the  courts  are  bound  to  take  notice  of  its 
decision,  and  to  follow  it. 

The  judgment  of  the  circuit  court  must,  therefore  f  Reaffirmed. 


STATE  OF  MISSISSIPPI  v.  JOHXSO^^,  Peesident. 

4  Wallace,  475.    Decided  1866. 

This  was  a  motion  made  by  Messrs.  Sharkey  and  E.  J.  Walker, 
on  behalf  of  the  State  of  Mississippi,  for  leave  to  file  a  bill  in 
the  name  of  the  State  praying  this  court  perpetually  to  enjoin 
and  restrain  Andrew  Johnson,  a  citizen  of  the  State  of  Tennessee 
and  President  of  the  United  States,  and  his  officers  and  agents 
appointed  for  that  purpose,  and  especially  E.  0.  C.  Ord,  assigned 
as  military  commander  of  the  district  where  the  State  of  Missis- 
sippi is,  from  executing  or  in  any  manner  carrying  out  two  acts 
of  Congress  named  in  the  bill,  one  "An  act  for  the  more  efficient 
government  of  the  rebel  states,"  passed  March  2d,  1867,  not- 
withstanding the  President's  veto  of  it  as  unconstitutional,  and 


MISSISSIPPI  V.  JOHNSON.  653 

the  other  an  act  supplementary  to  it,  passed  in  the  same  way 
March  23d,  1867;  acts  commonly  called  the  Reconstruction  Acts. 

The  former  of  these  acts,  reciting  that  no  legal  State  governments 
or  adequate  protection  for  life  or  property  now  exists  in  the  rebel 
States  of  Virginia,  North  Carolina,  South  Carolina,  Georgia,  Missis- 
sippi, Alabama,  Louisiana,  Florida,  Texas,  and  Arkansas,  and  that 
it  was  necessary  that  peace  and  good  order  should  be  enforced  in 
them  until  loyal  and  republican  State  governments  could  bo  legally 
established,  divided  the  States  named  into  five  military  districts, 
and  made  it  the  duty  of  the  President  to  assign  to  each  one  an 
officer  of  the  army,  and  to  detail  a  sufficient  military  force  to 
enable  him  to  perform  his  duties  and  enforce  his  authority  within 
his  district.  It  made  it  the  duty  of  this  officer  to  protect  all 
persons  in  their  rights,  to  suppress  insurrection,  disorder,  vio- 
lence, and  to  punish,  or  cause  to  be  punished,  all  disturbers  of  the 
public  peace  and  criminals,  either  through  the  local  civil  tribunals 
or  through  military  commissions,  which  the  act  authorized.  It 
provided,  further,  that  on  the  formation  of  new  constitutions  and 
certain  conditions  which  the  act  prescribed,  the  States  respectively 
shall  be  declared  entitled  to  representation  in  Congress  and  the 
preceding  part  of  the  act  become  inoperative;  and  that  until  they 
were  so  admitted  any  civil  governments  which  might  exist  in  them 
should  be  deemed  provisional  only,  and  subject  to  the  paramount 
authority  of  the  United  States,  at  any  time  to  abolish,  modify, 
control,  or  supersede  it. 

The  second  of  the  two  acts  related  chiefly  to  the  registration  of 
voters  who  were  to  form  the  new  constitutions  of  the  States  in 
question. 

The  bill  set  out  the  political  history  of  Mississippi  so  far  as 
related  to  its  having  become  one  of  the  United  States;  and  "that 
forever  after  it  was  impossible  for  her  people,  or  for  the  State 
in  its  corporate  capacity,  to  dissolve  that  connection  with  the  other 
States,  and  that  any  attempt  to  do  so  by  secession  or  otherwise 
was  a  nullity;"  and  she  "now  solemnly  asserted  that  her  connec- 
tion with  the  Federal  government  was  not  in  anywise  thereby  de- 
stroyed or  impaired;"  and  she  averred  and  charged  "that  the  Con- 
gress of  the  United  States  cannot  constitutionally  expel  her  from 
the  Union,  and  that  any  attempt  which  practically  does  so  is 
a  nullity."     .     .     .     [Here  follows  an  extract  from  the  bills.] 

It  then  charged  that,  from  information  and  belief,  the  said 
Andrew  Johnson,  President,  in  violation  of  the  Constitution,  and 
in  violation  of  the  sacred  rights  of  the  States,  would  proceed,  not- 
withstanding his  vetoes,  and  as  a  mere  ministerial  duty,  to  the- 


654  CASES  ON  CONSTITUTIONAL  LAW. 

execution  of  said  acts,  as  though  they  were  the  law  of  the  land, 
which  the  vetoes  prove  he  would  not  do  if  he  had  any  discretion, 
or  that  in  doing  so  he  performed  anything  more  than  a  mere 
ministerial  duty;  and  that  with  the  view  to  the  execution  of 
said  acts  he  had  assigned  General  E.  0.  C.  Ord  to  the  command 
of  the  States  of  Mississippi  and  Arkansas. 

Upon  an  intimation  made  a  few  days  before  by  Mr.  Sharkey, 
of  his  desire  to  file  this  bill,  the  Attorney-General  objected  to  it 
171  limine,  as  containing  matter  not  fit  to  be  received.  The  Chief 
Justice  then  stated  that  while  as  a  general  thing  a  motion  to  file 
a  bill  was  granted  as  of  course,  yet  if  it  was  suggested  that  the  bill 
contained  scandalous  or  impertinent  matter,  or  was  in  other  re- 
spects improper  to  be  received,  the  court  would  either  examine 
the  bill  or  refer  it  to  a  master  for  examination.  The  only  matter, 
therefore,  which  would  now  be  considered  was  the  question  of 
leave  to  file  the  bill 

The  Chief  Justice  delivered  the  opinion  of  the  court.     .     .     . 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State 
of  Mississippi,  for  leave  to  file  a  bill  in  the  name  of  the  State, 
praying  this  court  to  perpetually  enjoin  and  restrain  Andrew 
Johnson,  President  of  the  United  States,  and  E.  0.  C.  Ord,  general 
commanding  in  the  District  of  Mississippi  and  Arkansas,  from 
executing,  or  in  any  manner  carrying  out,  certain  acts  of  Con- 
gress therein  named. 

The  acts  referred  to  are  those  of  March  2d,  and  March  23d, 
1867,  commonly  known  as  the  Eeconstruction  Acts. 

The  Attorney-General  objected  to  the  leave  asked  for,  upon 
the  ground  that  no  bill  which  makes  a  President  a  defendant, 
and  seeks  an  injunction  against  him  to  restrain  the  performance 
of  his  duties  as  President,  should  be  allowed  to  be  filed  in  this 
court. 

This  point  has  been  fully  argued,  and  we  will  now  dispose  of  it. 

We  shall  limit  our  inquiry  to  the  question  presented  by  the 
objection,  without  expressing  any  opinion  on  the  broader  issues 
discussed  in  argument,  whether,  in  any  case,  the  President  of  the 
United  States  may  be  required,  by  the  process  of  this  court,  to 
perform  a  purely  ministerial  act  under  a  positive  law,  or  may  be 
held  amenable,  in  any  case,  otherwise  than  by  impeachment  for 
crime. 

The  single  point  which  requires  considerati<ni  is  J^his:  Can  the 
President  be  restrained  by  injunction  from  canying  into  effect 
an  act  of  Congress  alleged  to  beunconstitutional? 


MISSISSIPPI  V.  JOHNSON.  665 

It  is  assumed  by  the  counsel  for  the  State  of  Mississippi,  that 
the  President,  in  the  execution  of  the  Eeconstruction  Acts,  is  re- 
quired to  perform  a  mere  ministerial  duty.  In  this  assumption 
there  is,  we  think,  a  confounding  of  the  terms  ministerial  and 
executive,  which  are  by  no  means  equivalent  in  import. 

A  ministerial  duty,  the  performance  of  J¥hich_inay,  in  proper 

jcaseSj  be  required  of  the  head  of  ^department,  by  Judicial  proeess, 

is_fliie.,i]a.i£sp£(±_ta.Jghich  nothing,  is.- left  to  discretion.     It  is  a 

simple,  definite  duty>  arising-usder  conditions- admitted  or  g^roved 

to  exist,  and  impijged^iiy  law. 

The  case  of  Marbury  v.  Madison,  Secretary  of  State,^  furnishes 
an  illustration.  A  citizen  had  been  nominated,  confirmed,  and 
appointed  a  justice  of  the  peace  for  the  District  of  Columbia,  and 
his  commission  had  been  made  out,  signed,  and  sealed.  Nothing 
remained  to  be  done  except  delivery,  and  the  duty  of  delivery  was 
imposed  by  law  on  the  Secretary  of  State.  It  was  held  that  the 
performance  of  this  duty  might  be  enforced  by  mandamus  issuing 
from  a  court  having  Jurisdiction. 

So,  in  the  case  of  Kendall,  Postmaster-General,  v.  Stockton  & 
Stokes,^  an  act  of  Congress  had  directed  the  Postmaster-General 
to  credit  Stockton  &  Stokes  with  such  sums  as  the  Solicitor  of 
the  Treasury  should  find  due  to  them;  and  that  officer  refused  to 
credit  them  with  certain  sums,  so  found  due.  It  was  held  that 
the  crediting  of  this  money  was  a  mere  ministerial  duty,  the  per- 
formance of  which  might  be  Judicially  enforced. 

In  each  of  these  cases  nothing  was  left  t"  (^iscrptinTi.  There  was 
no_ room  for JJieexereise. of. Judgment,  The  law  required  the  per- 
formance of  a  single  spccific_act;  and  that  performance,  it  was 
held,  mio^ht  be  rcqiiirod  Ijy  mandamus. 

Very  difrcrent  is  the  duty  of  the  President  in  the  exercise  of 
the  power  to  see  that  the. laws  are  faithfully^  executed,,,  and  among 
these  laws  the  acts  named  in  ihe  .bill.  By  the  first  of  these  acts 
he  is  required  to  assign  generals  to  command  in  the  several  mili- 
tary districts,  and  to  detail  sufficient  military  force  to  enable 
such  officers  to  discharge  their  duties  under  the  law.  By  the  sup- 
plementary acts,  other  duties  are  imposed  on  the  several  command- 
ing generals,  and  these  duties  must  necessarily  be  performed  under 
the  supervision  of  the  President  as  commander-in-chief.  The  duty 
thus  imposed  onjthjg  President  is  in  no  just_ sense  minisjterial.  It  is 
purely  executive  and  political. 

An  attempt  on  the  part  of  tbp^  Judicial  departnient  of  the  gov- 
ernment  to  enforce  the  performance  of  such  duties  by  the  Presi- 
1 1  Cranch,  137.  2  12  Peters,  527. 


656  CASES  ON  CONSTITUTIONAL  LAW. 

^PTvLTnighi  hp  pstlv  characterized^ in  the  language  of  Chief  Jus- 
tice  Marshall,  as  ''an_absurd  and  excesqjyft  9:\iravfi^^iiq^.." 

It  is  true  that  in  the  instance  before  us  the  interposition  of  the 
court  is  not  sought  to  enforce  action  by  the  Executive  under  con- 
stitutional legislation,  but  to  restrain  such  action  under  legisla- 
tion alleged  to  be  unconstitutional.  But  we  are  unable  to  per- 
ceive that  this  circumstance  takes  the  case  out  of  the  general 
principles  which  forbid  judicial  interference  with  the  exercise  of 
Executive  discretion. 

It  was  admitted  in  the  argument  that  the  application  now  made 
to  us  is  without  a  precedent;  and  this  is  of  much  weight  against  it. 

Had  it  been  supposed  at  the  bar  that  this  court  would,  in  any 
case,  interpose,  by  injunction,  to  prevent  the  execution  of  an  un- 
constitutional act  of  Congress,  it  can  hardly  be  doubted  that  appli- 
cations with  that  object  would  have  been  heretofore  addressed  to  it. 

Occasions  have  not  been  wanting. 

The  constitutionality  of  the  act  for  the  annexation  of  Texas 
was  vehemently  denied.  It  made  important  and  permanent  changes 
in  the  relative  importance  of  States  and  sections,  and  was  by  many 
supposed  to  be  pregnant  with  disastrous  results  to  large  interests 
in  particular  States.  But  no  one  seems  to  have  thought  of  an  ap- 
plication for  an  injunction  against  the  execution  of  the  act  by 
the  President. 

And  yet  it  is  difficult  to  perceive  upon  what  principle  the  appli- 
cation now  before  us  can  be  allowed  and  similar  applications  in 
that  and  other  cases  have  been  denied. 

The  fact  that  no  such  application  was  ever  before  made  in  any 
case  indicates  the  general  judgment  of  the  profession  that  no  such 
application  should  be  entertained. 

It  will  hardly  be  contended  that  Congress  [the  courts?]  can 
interpose,  in  any  case,  to  restrain  the  enactment  of  an  unconsti- 
tutional law;  and  yet  how  can  tlie  right  to  judicial  interposition 
to  prevent  such  an  enactment,  when  the  purpose  is  evident  and 
the  execution  of  that  purpose  certain,  be  distinguished,  in  prin- 
ciple, from  the  right  to  such  interposition  against  the  execution 
of  such  a  law  by  the  President? 

The  Congress  igthe  legislative^  department  of  the  govemigent; 
the  President  is  the  exe^uTive  department.  Neither  can  be  .re- 
strained in  its  action  by  the  judicial  department;  though  the 
acts  of  both,  when  performed,_iiie,un  proper  cases,  subject^to  its 
cognizance. 

The  impropriety  of  such  interference  will  be  clearly  seen  upon 
consideration  of  its  possible  consequences. 


MISSISSIPPI  V.  JOHNSON.  657 

Suppose  the  biU  filed  and  tlio  injunc.tiaiiL_prayed.ior  allowed. 
If  the  President  refuse  obedience,  it  is  needless  to  observe  that 
the  court  is  without  power  to  enforce  its  process.    If,  on  the  other 
hand,  the  President  complies  with  the  order  of  the  court  and 
refuses  to  execute  the  acts  of  Congress,  is  it  not  clear  that  a  col- 
lisionmay  occur  between  the  executive  and  legislative  departments 
of  the  government?    May  not  the  House  of  Kepresentatives  im; 
peach  the  President  for  such  refusal?    And  in  that  case  could  this\ 
court  interfere,  in  behalf  of  the  President,  thus  endangered  by  i 
compliance  with  its  mandate,  and  restrain  by  injunction  the  Senate  ! 
of  the  United  States  from  sitting  as  a  court  of  impeachment?  \ 
Would  the  strange  spectacle  be  offered  to  the  public  world  of  an  J 
aittempt  by  this  court  to  arrest  proceedings  in  that  court?  -^ 

These  questions  answer  themselves. 

It  is  true  that  a  State  may  file  an  original  bill  in  this  court.  And 
it  may  be  true,  in  some  cases,  that  such  a  bill  may  be  filed  against 
the  United  States.  But  we  are  _ful]y_  St^tisfied.  that  fhia  nnnrt 
has  no  jurisdiction  of  a  bill  to  enjoiiL_tlifi..  President  in  the  per- 
formance of  his  official  duties;  and  thatJlflL-Siich  bill  ought  to  be 
received  by  us. 

It  has  been  suggested  that  the  bill  contains  a  prayer  that,  if 
the  relief  sought  cannot  be  had  against  Andrew  Johnson,  as  Presi- 
dent, it  may  be  granted  against  Andrew  Johnson  as  a  citizen  of 
Tennessee.  But  it  is  plain  that  relief  as  against  the  execution  of 
an  act  of  Congress  by  Andrew  Johnson,  is  relief  against  its  execu- 
tion by  the  President.  A  bill  praying  an  injunction  against  the 
execution  of  an  act  of  Congress  by  the  incumbent  of  the  presi- 
dential office  cannot  be  received,  whether  it  describes  him  as  Presi- 
dent or  as  a  citizen  of  a  State. 

The  motion  for  leave  to  file  the  bill  is,  therefore,  Denied. 

Note. — Whether  any  particular  class  of  Indians  are  still  to  be 
regarded  as  a  tribe,  or  have  ceased  to  hold  the  tribal  relation,  is 
primarily  a  question  for  the  political  departments  of  the  govern- 
ment, and  if  they  have  decided  it,  this  court  will  follow  their 
lead.    United  States  v.  Holliday,  3  Wallace,  407. 

It  belongs  exclusively  to  the  government  to  recognize  the  polit- 
ical existence  of  new  foreign  states,  and  until  it  does  so,  courts 
must  consider  the  old  state  of  things  as  remaining.  Gelston  v. 
Hoyt,  3  Wheaton,  246. 

In  a  controversy  between  the  United  States  and  a  foreign  sov- 
ereign as  to  boundary,  this  court  must  follow  the  decision  of  that 
department  of  the  government  intrusted  by  the  constitution  with 
42 


658  CASES  ON  CONSTITUTIONAL  LAW. 

the  care  of  its  foreign  relations,  especially  if  sanctioned  by  the 
legislative  power.    Foster  v.  Neilson,  3  Peters,  253. 

A  bill  in  equity  filed  by  one  of  the  United  States  to  enjoin  the 
Secretary  of  War  and  other  officers  who  represent  the  Executive 
authority  of  the  United  States  from  carrying  into  execution  cer- 
tain acts  of  Congress,  on  the  ground  that  such  execution  would 
annul  and  totally  abolish  the  existing  State  government  of  the 
State  and  establish  another  and  different  one  in  its  place — in  other 
words,  would  overthrow  and  destroy  the  corporate  existence  of  the 
State  by  depriving  it  of  all  means  and  instrumentalities  whereby  its 
existence  might,  and  otherwise  would,  be  maintained — calls  for 
judgment  upon  a  political  question,  and  will  therefore  not  be 
entertained  by  this  court.  State  of  Georgia  v.  Stanton,  6  Wal- 
lace, 50. 

The  President,  in  a  message  to  congress,  and  in  the  correspond- 
ence carried  on  with  the  government  of  Buenos  Ayres,  having 
denied  the  jurisdiction  of  that  country  over  the  Falkland  Islands, 
the  courts  must  take  the  fact  so  to  be.  Williams  v.  Suffolk  Insur- 
ance Co.,  13  Peters,  415. 

Who  is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is  not 
a  judicial  but  a  political  question,  the  determination  of  which  by 
the  legislative  and  executive  departments  of  any  government  con- 
clusively binds  the  judges,  as  well  as  all  other  officers,  citizens  and 
subjects  of  that  government.  Jones  v.  United  States,  137  U.  S., 
202. 


XVI.      ENFORCEMENT  OF   EXECUTIVE   POWER 
BY  JUDICIAL  PROCESS. 


In  be  debs,  Petitioneb. 
158  U.  S.,  564.    Decided  1895. 

[On  July  2,  1894,  the  district  attorney  for  the  Northern  District 
of  Illinois,  acting  under  the  direction  of  the  Attorney-General 
of  the  United  States,  filed  a  bill  of  complaint  in  the  Circuit  Court 
of  the  United  States  for  the  Northern  District  of  Illinois  against 
these  petitioners  and  others.  The  bill  averred  that  the  twenty-two 
railroads  named  therein  were  engaged  in  the  business  of  inter- 
state commerce  and  also  that  each  of  them  was  under  contract 
to  carry  the  United  States  mails;  that  four  of  the  defendants 
were  officers  of  the  American  Eailway  Union;  that  these  four  offi- 
cers combined  with  others  to  compel  an  adjustment  of  a  dispute 
between  the  Pullman  Palace  Car  Company  and  its  employes  by 
boycotting  the  cars  of  the  company;  that  to  make  the  boycott 
effective,  they  had  prevented  certain  of  the  railroads  running 
out  of  Chicago  from  operating  their  trains,  and  were  combining 
to  extend  such  boycott  against  the  Pullman  cars  by  causing  strikes 
among  employes  of  all  ro.ads  attempting  to  haul  the  same;  that 
the  defendants  and  others  unknown  proceeded  by  collecting  to- 
gether in  large  numbers,  by  threats,  intimidation,  force  and  vio- 
lence, to  prevent  the  said  railways  from  employing  other  persons 
to  fill  the  vacancies  aforesaid;  that  the  defendants  and  others 
unknown  did  with  force  and  violence  obstruct,  derail,  and  wreck 
the  engines  and  trains  of  the  said  railways,  both  passenger  and 
freight,  engaged  in  interstate  commerce  and  in  carrying  the  United 
States  mails.  Following  these  allegations  was  a  prayer  for  an  in- 
junction. The  court  thereupon  ordered  an  injunction  command- 
ing the  defendants  "and  all  persons  combining  and  conspiring  with 
them,  and  all  other  persons  whomsoever  absolutely  to  desist  and 
refrain  from"  doing  the  unlawful  acts  specified  in  the  bill.  The 
injunction  was  served  on  those  of  the  defendants  who  are  here  as 

659 


660  CASES  ON  CONSTITUTIONAL  LAW. 

petitioners.  On  July  17  the  district  attorney  filed  an  informa- 
tion for  an  attachment  against  the  four  defendants,  and  on  August 
1  a  similar  information  against  the  other  petitioners.  A  hearing 
was  had  before  the  Circuit  Court,  and  on  December  14,  these  peti- 
tioners were  found  guilty  of  contempt  and  sentenced  to  imprison- 
ment in  the  county  jail  for  terms  varying  from  three  to  six  months. 
Having  been  committed  to  jail,  they  on  January  14,  1895,  applied 
to  this  court  for  a  writ  of  error  and  also  a  writ  of  habeas  corpus. 
The  former  was  denied  on  the  ground  that  the  order  of  the  Circuit 
Court  was  not  a  final  judgment  or  decree.  The  latter  is  now  to 
be  considered.] 

Mr.  Justice  Breweb  ...  delivered  the  opinion  of  the 
court. 

The  case  presented  by  the  bill  is  this:  The  United  States, 
finding  that  the  interstate  transportation  of  persons  and  property, 
as  well  as  the  carriage  of  the  mails,  is  forcibly  obstructed,  and  that 
a  combination  and  conspiracy  exists  to  subject  the  control  of  such 
transportation  to  the  will  of  the  conspirators,  applied  to  one  of 
their  courts,  sitting  as  a  court  of  equity,  for  an  injunction  to  re- 
strain such  obstruction  and  prevent  carrying  into  effect  such  con- 
spiracy. Two  questions  of  importance  are  suggested:  First.  Are 
the  relations  of  the  general  government  to  interstate  commerce  and 
the  transportation  of  the  mails  such  as  to  authorize  a  direct  inter- 
ference to  prevent  a  forcible  obstruction  thereof?  Second.  If 
authority  exists,  as  authority  in  government  implies  both  power 
and  duty,  has  a  court  of  equity  jurisdiction  to  issue  an  injunction 
in  aid  of  the  performance  of  such  duty? 

First.  What  are  the  relations  of  the  general  government  to 
interstate  commerce  and  the '  transportation  of  the  mails?  They 
are  those  of  direct  supervision,  control,  and  management.  While 
under  the  dual  system  which  prevails  with  us  the  powers  of  gov- 
ernment are  distributed  between  the  State  and  the  Nation,  and 
while  the  latter  is  properly  styled  a  government  of  enumerated 
powers,  yet  within  the  limits  of  such  enumeration  it  has  all  the 
attributes  of  sovereignty,  and,  in  the  exercise  of  those  enumerated 
powers,  acts  directly  upon  the  citizen,  and  not  through  the  inter- 
taiediate  agency  of  the  State. 

"The  govemmen-t  of  the  Union,  then,  is,  emphatically  and  truly, 
a  government  of  the  people.  In  form  and  in  substance  it  emanates 
from  them.  Its  powers  are  granted  by  them,  and  are  to  be  exer- 
cised directly  on  them,  and  for  their  benefit." 

**No  trace  is  to  be  found  in  the  Constitution  of  an  intention  to 


IN  RE  DEBS,  PETITIONER.  661 

create  a  dependence  of  the  government  of  the  Union  on  those  of 
the  States,  for  the  execution  of  the  great  powers  assigned  to  it.  Its 
means  are  adequate  to  its  ends,  and  on  those  means  alone  was 
it  expected  to  rely  for  the  accomplishment  of  its  ends.  To  impose 
on  it  the  necessity  of  resorting  to  means  which  it  cannot  control, 
which  another  government  may  furnish  or  withhold,  would  render 
its  course  precarious,  the  result  of  its  measures  uncertain,  and  cre- 
ate a  dependence  on  other  governments,  which  might  disappoint 
its  most  important  designs,  and  is  incompatible  with  the  language 
of  the  Constitution."  Chief  Justice  Marshall  in  McCuUoch  v. 
Maryland,  4  Wheat,  316,  405,  424. 

"Both  the  States  and  the  United  States  existed  before  the  Con- 
stitution. The  people,  through  that  instrument,  established  a  more 
perfect  union  by  substituting  a  national  government,  acting,  with 
'ample  power,  directly  upon  the  citizens,  instead  of  the  confederate 
government,  which  acted  with  powers,  greatly  restricted,  only  upon 
the  States."  Chief  Justice  Chase  in  Lane  County  v.  Oregon,  7 
Wall.,  71,  76. 

"We  hold  it  be  an  incontrovertible  principle,  that  the  govern- 
ment of  the  United  States  may,  by  means  of  physical  force,  exer- 
cised through  its  official  agents,  execute  on  every  foot  of  American 
soil  the  powers  and  functions  that  belong  to  it.  This  necessarily 
involves  the  power  to  command  obedience  to  its  laws,  and  hence 
the  power  to  keep  the  peace  to  that  extent. 

"This  power  to  enforce  its  laws  and  to  execute  its  functions  in 
all  places  does  not  derogate  from  the  power  of  the  State  to  execute 
its  laws  at  the  same  time  and  in  the  same  places.  The  one  does 
not  exclude  the  other,  except  where  both  cannot  be  executed  at 
the  same  time.  In  that  case,  the  words  of  the  Constitution  itself 
show  which  is  to  yield.  'This  Constitution,  and  all  laws  which 
shall  be  made  in  pursuance  thereof,  .  .  .  shall  be  the  supreme 
law  of  the  land.' "  Mr.  Justice  Bradley  in  Ex  parte  Siebold,  100 
U.  S.,  371,  395.     .     .     . 

Among  the  powers  expressly  given  to  the  national  government 
are  the  control  of  interstate  commerce  and  the  creation  and  man- 
agement of  a  post  office  system  for  the  nation.  .  .  .  [Here 
follows  a  consideration  of  the  statutes  passed  in  the  exercise  of 
these  powers.] 

Obviously  these  powers  given  to  the  national  government  over 
interstate  commerce  and  in  respect  to  the  transportation  of  the 
mails  were  not  dormant  and  unused.  Congress  had  taken  hold 
of  these  two  matters,  and  by  various  and  specific  acts  had  assumed 
and  exercised  the  powers  given  to  it,  and  was  in  full  discharge 


662  CASES  ON  CONSTITUTIONAL  LAW. 

of  its  duty  to  regulate  interstate  commerce  and  carry  the  mails. 
The  validity  of  such  exercise  and  the  exclusiveness  of  its  con- 
trol had  been  again  and  again  presented  to  this  court  for  consider- 
ation. It  is  curious  to  note  the  fact  that  in  a  large  proportion  of 
the  cases  in  respect  to  interstate  commerce  brought  to  this  court 
the  question  presented  was  of  the  validity  of  state  legislation  in  its 
bearings  upon  interstate  commerce,  and  the  uniform  course  of  de- 
cision has  been  to  declare  that  it  is  not  within  the  competency 
of  a  State  to  legislate  in  such  a  manner  as  to  obstruct  interstate 
"commerce.  If  a  State  with  its  recognized  powers  of  sovereignty 
is  impotent  to  obstruct  interstate  commerce,  can  it  be  that  any 
mere  voluntary  association  of  individuals  within  the  limits  of  that 
State  has  a  power  which  the  State  itself  does  not  possess? 

As,  under  the  Constitution,  power  over  interstate  commerce  and 
the  transportation  of  the  mails  is  vested  in  the  national  govern- 
ment, and  Congress  by  virtue  of  such  grant  has  assumed  actual 
and  direct  control,  it  follows  that  the  national  government  may 
prevent  any  unlawful  and  forcible  interference  therewith.  But 
how  shall  this  be  accomplished?  Doubtless,  it  is  within  the  com- 
petency of  Congress  to  prescribe  by  legislation  that  any  interference 
with  these  matters  shall  be  oilenses  against  the  United  States,  and 
prosecuted  and  punished  by  indictment  in  the  proper  courts.  But 
is  that  the  only  remedy?  Have  the  vast  interests  of  the  nation 
in  interstate  commerce,  and  in  the  transportation  of  the  mails,  no 
other  protection  than  lies  in  the  possible  punishment  of  those  who 
interfere  with  it?  To  ask  the  question  is  to  answer  it.  By  article 
3,  section  2,  clause  3,  of  the  Federal  Constitution  it  is  provided: 
**The  trial  of  all  crimes  except  in  cases  of  impeachment  shall  be  by 
jury;  and  such  trial  shall  be  held  in  the  State  where  the  said 
crime  shall  have  been  committed."  If  all  the  inhabitants  of  a 
State,  or  even  a  great  body  of  them,  should  combine  to  obstruct 
interstate  commerce  or  the  transporation  of  the  mails,  prosecutions 

•  for  such  offenses  had  in  such  a  community  would  be  doomed  in 
advance  to  failure.  And  if  the  certainty  of  such  failure  was  known, 
and  the  national  government  had  no  other  way  to  enforce  the  free- 
dom of  interstate  commerce  and  the  transportation  of  the  mails 
than  by  prosecution  and  punishment  for  interference  therewith, 
the  whole  interests  of  the  nation  in  these  respects  would  be  at 

/■  the  absolute  mercy  of  a  portion  of  the  inhabitants  of  that  single 

I   State. 

y      But  there  is  no  such  impotenc^  in  the  national  government.  The 

\  entire  strength  of  the  nation  may  be  used  to  enforce  in  any  part  of 
Vhe  land  the  full  and  free  exercise  of  all  national  powers  and  the 


IN  RE  DEBS,  PETITIONER.  663 

n  security  of  all  rights  entrusted  by  the  Constitution  to  its  care. 
J  The  strong  arm  of  the  national  government  may  be  put  forth  to 
I  brush  away  all  obstructions  to  the  freedom  of  interstate  commerce 
I  or  the  transportation  of  the  mails.  If  the  emergency  arises,  the 
\  army  of  the  Nation,  and  all  its  militia,  are  at  the  service  of  the 
XNation  to  compel  obedience  to  its  laws. 

But  passing  to  the  second  question,  is  there  no  other  alternative 
than  the  use  of  force  on  the  part  of  the  executive  authorities  when- 
ever obstructions  arise  to  the  freedom  of  interstate  commerce  or  the 
transportation  of  the  mails?  Is  the  army  the  only  instrument 
by  which  rights  of  the  public  can  be  enforced  and  the  peace  of  the 
nation  preserved?  Grant  that  any  public  nuisance  may  be  forcibly 
abated  either  at  the  instance  of  the  authorities,  or  by  any  individ- 
ual suffering  private  damage  therefrom,  the  existence  of  this  right 
of  forcible  abatement  is  not  inconsistent  with  nor  does  it  destroy 
^the  right  of  appeal  in  an  orderly  way  to  the  courts  for  a  judicial 
determination,  and  an  exercise  of  their  powers  by  writ  of  injunc- 
tion and  otherwise  to  accomplish  the  same  result.     .     .     . 

So,  in  the  case  before  us,  the  right  to  use  force  does  not  exclude 
the  right  of  appeal  to  the  courts  for  a  judicial  determination  and 
^for  the  exercise  of  all  their  powers  of  prevention.  Indeed,  it  is  more 
to  the  praise  than  to  the  blame  of  the  government,  that,  instead 
of  determining  for  itself  questions  of  right  and  wrong  on  the 
part  of  these  petitioners  and  their  associates  and  enforcing  that 
determination  by  the  club  of  the  policeman  and  the  bayonet  of  the 
soldier,  it  submitted  all  those  questions  to  the  peaceful  determina- 
tion of  judicial  tribunals,  and  invoked  their  consideration  and 
judgment  as  to  the  measure  of  its  rights  and  powers  and  the  cor- 
relative obligations  of  those  against  whom  it  made  complaint.  And 
it  is  equally  to  the  credit  of  the  latter  that  the  judgment  of  those 
tribunals  was  by  the  great  body  of  them  respected,  and  the  troubles 
which  threatened  so  much  disaster  terminated. 

Neither  can  it  be  doubted  that  the  government  has  such  an 
interest  in  the  subject-matter  as  enables  it  to  appear  as  party 
plaintiff  in  this  suit.  It  is  said  that  equity  only  interferes  for  the 
protection  of  property,  and  that  the  government  has  no  property 
interest.  A  sufficient  reply  is  that  the  United  States  have  a  prop- 
erty in  the  mails,  the  protection  of  which  was  one  of  the  purposes 
of  this  bill.     .     .     . 

We  do  not  care  to  place  our  decision  upon  this  ground  alone. 
Every  government,  entrusted,  by  the  very  terms  of  its  being,  with 
powers  and  duties  to  be  exercised  and  discharged  for  the  general 
welfare,  has  a  right  to  apply  to  its  own  courts  for  any  proper  assist- 


664  CASES  ON  CONSTITUTIONAL  LAW. 

ance  in  the  exercise  of  the  one  and  the  discharge  of  the  other,  and 

it  is  no  sufficient  answer  to  its  appeal  to  one  of  those  courts  that 

it  has  no  pecuniary  interest  in  the  matter.     The  obligation  which 

/"it  is  under  to  promote  the  interest  of  all,  and  to  prevent  the  wrong- 

/  doing  of  one  resulting  in  injury  to  the  general  welfare,  is  often 

/  of  itself  sufficient  to  give  it  standing  in  the  court,     [Here  fol- 

l  lows  a  discussion  of  United  States  v.  San  Jacinto  Tin  Co.,  125 

^  U.  S.,  273,  285,  and  United  States  v.  Bell  Telephone  Company, 

128  U.  S.,  315,  367.] 

It  is  obvious  from  these  decisions  that  while  it  is  not  the  prov- 
ince of  the  government  to  interfere  in  any  mere  matter  of  private 
controversy  between  individuals,  or  to  use  its  great  powers  to 
enforce  the  rights  of  one  against  another,  yet,  whenever  the  wrongs 
complained  of  are  such  as  affect  the  public  at  large,  and  are  in 
respect  of  matters  which  by  the  Constitution  are  entrusted  to  the 
care  of  the  Xation,  and  concerning  which  the  Nation  owes  the 
duty  to  all  the  citizens  of  securing  to  them  their  common  rights, 
then  the  mere  fact  that  the  government  has  no  pecuniary  interest 
in  the  controversy  is  not  sufficient  to  exclude  it  from  the  courts, 
or  prevent  it  from  taking  measures  therein  to  fully  discharge  those 
constitutional  duties. 

The  national  government,  given  by  the  Constitution  power  to 
regulate  interstate  commerce,  has  by  express  statute  assumed  juris- 
diction over  such  commerce  when  carried  upon  railroads.  It  is 
charged,  therefore,  with  the  duty  of  keeping  those  highways  of 
interstate  commerce  free  from  obstruction,  for  it  has  always  been 
recognized  as  one  of  the  powers  and  duties  of  a  government  to 
remove  obstructions  from  the  highway  under  its  control. 

As  said  in  Gilman  v.  Philadelphia,  3  Wall.,  713,  724:  "The 
power  to  regulate  commerce  comprehends  the  control  for  that 
purpose,  and  to  the  extent  necessary,  of  all  the  navigable  waters  of 
the  United  States  which  are  accessible  from  a  State  other  than  those 

/in  which  they  lie.  For  this  purpose  they  are  the  public  property 
of  the  nation,  and  subject  to  all  the  requisite  legislation  by  Con- 
gress. This  necessarily  includes  the  power  to  keep  them  open 
and  free  from  any  obstruction  to  their  navigation,  interposed 
by  the  States  or  otherwise;  to  remove  such  obstructions  when 
they  exist;  and  to  provide,  by  such  sanctions  as  they  may  deem 
\  proper,  against  the  occurrence  of  the  evil  and  for  the  punish- 
ment of  the  offenders.  For  these  purposes.  Congress  possesses 
all  the  powers  which  existed  in  the  States  before  the  adoption 
of  the  national  Constitution,  and  which  have  always  existed  in  the 
Parliament  of  England."     .     .     . 


IN  RE  DEBS,  PETITIONER.  665 

It  is  said  that  the  jurisdiction  heretofore  exercised  by  the  na- 
tional government  over  highways  has  been  in  respect  to  water-' 
ways — the  natural  highways  of  the  country — and  not  over  artifi- 
/cial  highways  such  as  railroads;  but  the  occasion  for  the  exercise 
f  by  Congress  of  its  jurisdiction  over  the  latter  is  of  recent  date. 
/   Perhaps  the  first  act  in  the  course  of  such  legislation  is  that  here- 
I    tofore  referred  to,  of  June  14,  1866,  but  the  basis  upon  which 
Y  rests  its  jurisdiction  over  artificial  highways  is  the  same  as  that 
\which  supports  it  over  the  natural  highways.     Both  spring  from 
the  power  to  regulate  commerce.     The  national  government  has 
no  separate  dominion  over  a  river  within  the  limits  of  a  State;  its 
jurisdiction  there  is  like  that  over  land  in  the  same  State.     Its 
control  over  the  river  is  simply  by  virtue  of  the  fact  that  it  is 
one  of  the  highways  of  interstate  and  international  commerce. 
The  great  case  of  Gibbons  v.  Ogden,  9  Wheat.,  1,  197,  in  which 
the  control  of  Congress  over  inland  waters  was  asserted,  rested 
that  control  on  the  grant  of  the  power  to  regulate  commerce.    The 
argument  of  the  Chief  Justice  was  tiiat  commerce  includes  naviga- 
tion, "and  a  power  to  regulate  navigation  is  as  expressly  granted 
as  if  that  term  had  been  added  to  the  word  'commerce.' "     In 
order  to  fully  regulate  commerce  with  foreign  nations  it  is  essen- 
tial that  the  power  of  Congress  does  not  stop  at  the  borders  of  the 
nation,  and  equally  so  as  to  commerce  among  the  States: 

"The  power  of  Congress,  then,  comprehends  navigation  within 
the  limits  of  every  State  in  the  Union,  so  far  as  that  navigation 
may  be,  in  any  manner,  connected  with  'commerce  with  foreign 
nations,  or  among  the  several  States,  or  with  the  Indian  tribes.^ 
It  may,  of  consequence,  pass  the  jurisdictional  line  of  New  York, 
and  act  upon  the  very  waters  to  which  the  prohibition  now  under 
consideration  applies." 

See  also  Oilman  v.  Philadelphia,  3  Wall.,  713,  725,  in  which 
it  was  said:  "Wherever  'commerce  among  the  States'  goes,  the 
power  of  the  nation,  as  represented  in  this  court,  goes  with  it 
to  protect  and  enforce  its  rights." 

Up  to  a  recent  date  commerce,  both  interstate  and  international, 
was  mainly  by  water,  and  it  is  not  strange  that  both  the  legislation 
of  Congress  and  the  cases  in  the  courts  have  been  principally  con- 
cerned therewith.  The  fact  that  in  recent  years  interstate  com- 
merce has  come  mainly  to  be  carried  on  by  railroads  and  over 
artificial  highways  has  in  no  manner  narrowed  the  scope  of  the 
constitutional  provision,  or  abridged  the  power  of  Congress  over 
such  commerce.     On  the  contrary,  the  same  fullness  of  control 


666  CASES  ON  CONSTITUTIONAL  LAW. 

f  exists  in  the  one  case  as  in  the  other,  and  the  same  power  to 
/  remove  obstructions  from  the  one  as  from  the  other. 
V  Constitutional  provisions  do  not  change,  but  their  operation 
extends  to  new  matters  as  the  modes  of  business  and  the  habits 
of  life  of  the  people  vary  with  each  succeeding  generation.  The 
law  of  the  common  carrier  is  the  same  today  as  when  transportation 
on  land  was  by  coach  and  wagon,  and  on  water  by  canal  boat  and 
sailing  vessel,  yet  in  its  actual  operation  it  touches  and  regulates 
transportation  by  modes  then  unknown,  the  railroad  train  and 
the  steamship.  Just  so  is  it  with  the  grant  to  the  national  gov- 
ernment of  power  over  interstate  commerce.  The  Constitution 
has  not  changed.  The  power  is  the  same.  But  it  operates  today 
upon  modes  of  interstate  commerce  unknown  to  the  fathers,  and 
it  will  operate  with  equal  force  upon  any  new  modes  of  such 
commerce  which  the  future  may  develop.     .     .     . 

We  have  given  to  this  case  the  most  careful  and  anxious  atten- 
tion, for  we  realize  that  it  touches  closely  questions  of  supreme 
importance  to  the  people  of  this  country.    Summing  up  our  con- 
clusions, we  hold  that  the  government  of  the  United  States  is 
one  having  jurisdiction  over  every  foot  of  soil  within  its  territory, 
and  acting  directly  upon  each  citizen;   that  while  it  is  a  govern- 
ment of  enumerated  powers,  it  has  within  the  limits  of  those 
powers  all  the  attributes  of  sovereignty;   that  to  it  is  committed 
power  over  interstate  commerce  and  the  transmission  of  the  mail; 
that  the  powers  thus  conferred  upon  the  national  government  are 
not  dormant,  but  have  been  assumed  and  put  into  practical  exer- 
cise by  the  legislation  of  Congress;   that  in  the  exercise  of  those 
powers  it  is  competent  for  the  nation  to  remove  all  obstructions 
upon  highways^  natural  or  artificial,  to  the  passage  of  interstate 
commerce  or  the  carrying  of  the  mail;  that  while  it  may  be  com- 
petent for  the  government  (through  the  executive  branch  and 
in  the  use  of  the  entire  executive  power  of  the  nation)  to  forcibly 
remove  all  such  obstructions,  it  is  equally  within  its  competency 
to  appeal  to  the  civil  courts  for  an  inquiry  and  determination  as  to 
the  existence  and  character  of  any  alleged  obstructions,  and  if 
^uch  are  found  to  exist,  or  threaten  to  occur,  to  invoke  the  powers 
/of  these  courts  to  remove  or  restrain  such  obstructions;   that  the 
/  jurisdiction  of  courts  to  interfere  in  such  matters  by  injunction 
I    is  one  recognized  from  ancient  times  and  by  indubitable  author- 
I    ity;   that  such  jurisdiction  is  not  ousted  by  the  fact  that  the  ob- 
\  structions  are  accompanied  by  or  consist  of  acts  in  themselves  vio- 
lations of  the  criminal  law;    that  the  proceeding  by  injunction 
is  of  a  civil  character,  and  may  be  enforced  by  proceedings  in  con- 


IN  RE  DEBS,  PETITIONER.  667 

tempt;  that  such  proceedings  are  not  in  execution  of  the  crim- 
inal laws  of  the  land;  that  the  penalty  for  a  violation  of  injunc- 
tion is  no  substitute  for  and  no  defense  to  a  prosecution  for  any 
criminal  offenses  committed  in  the  course  of  such  violation;  that 
the  complaint  filed  in  this  case  clearly  showed  an  existing  obstruc- 
tion of  artificial  highways  for  the  passage  of  interstate  commerce 
and  the  transmission  of  the  mail — an  obstruction  not  only  tem- 
porarily existing,  but  threatening  to  continue;  that  under  such 
complaint  the  Circuit  Court  had  power  to  issue  its  process  of 
injunction;  that  it  having  been  issued  and  served  on  these  de- 
fendants, the  Circuit  Court  had  authority  to  inquire  whether  its 
orders  had  been  disobeyed,  and  when  it  found  that  they  had  been, 
then  to  proceed  under  section  725,  Revised  Statutes,  which  grants 
power  "to  punish  by  fine  or  imprisonment,  .  .  .  disobedi- 
ence, ...  by  any  party  ...  or  other  person,  to  any 
lawful  writ,  process,  order,  rule,  decree  or  command,"  and  enter 
the  order  of  punishment  complained  of;  and,  finally,  that,  the 
Circuit  Court,  having  full  jurisdiction  in  the  premises,  its  finding 
of  the  fact  of  disobedience  is  not  open  to  review  on  habeas  corpus 
in  this  or  any  other  court.     .     .     . 

The  petition  for  a  writ  of  habeas  corpus  is  Demed. 

Note. — See  articles  by  F.  J.  Stimson  on  The  Modem  Use  of  In- 
junctions, Political  Science  Quarterly,  X.  189  (1895),  and  by  Wil- 
liam H.  Dunbar  on  Government  by  Injunction,  Law  Quarterly  Re- 
view, XIII.,  347  (1897).  The  latter  has  been  reprinted  by  the 
American  Economic  Association  in  Economic  Studies,  Vol.  III., 
No.I. 


INDEX. 


Adams,  Charles  Francis,  Life  of  Ricliard  Henry  Dana,  351. 
Adams,  President  John,  17. 
Aliens,  Exclusion  of,  596,  598,  600. 
Amendments  of  U.  S.  Constitution,  498,  510. 

Fourth,  361. 

Fifth,  133,  153,  290,  361,  468,  471,  482,  509,  540. 

Sixth,  361. 

Tenth,  125,  164,  310,  524. 

Eleventh,  616,  632,  634. 

Twelfth,  498. 

Thirteenth,  491,  498,  499,  528,  531,  558. 

Fourteenth,   290,  298,   307,  491,   501,   513,  516,  519,  523,   527,   531, 
534,  540. 

Fifteenth,  502. 
Articles  of  Confederation,  86,  127,  163,  323,  480,  505,  555,  591,  622,  639,  640. 

Compared  with  Constitution,  30. 

Government  under,  173,  200,  201,  604,  610. 
Atterbury,  Bishop,  375  n. 
Attorney  General,  334,  335. 
Austria,  Emperor  of,  168. 

Baldwin,  Justice,  549,  590,  595. 

Cited,  639. 
Bank  of  the  United  States,  32,  33,  142. 

Power  of  Congress  to  incorporate,  308. 
Bankruptcy,  217,  405,  406,  408,  410,  432,  433,  438,  439,  448,  450. 

In  England,  446. 
Bates,  Chancellor,  249. 
Belligerents,  343,  349. 
Biddle,  George  W.,  Constitutional  History  as  Seen  in  American  Law, 

491. 
Bills  of  Attainder,  372,  383,  387,  403,  440. 
Bills  of  Credit,  102,  103,  106,  107,  109-118,  127,  131,  156,  164,  166-169. 

Legal  tender  not  an  essential  quality,  105,  128. 

Prohibition  on  States  to  issue,  112. 
See  Legal  Tender,  Money. 
Bill  of  Rights,  469,  470,  539. 
Black  Code,  530. 

Blackstone,  Sir  William,  377,  385,  402,  418,  515,  543. 
Blair,  Justice,  615. 
Blockade,  Effect  of,  347. 

Power  of  President  to  institute,  342,  348. 

Relation  of  neutrals  to,  343. 
Bracton,  605. 

669 


670  INDEX. 

Bradley,  Justice,  510. 

Cited,  285.  597.  660. 

Opinions  by,  68,  156,  519,  571. 
Brewer,  Justice,  280,  602. 

Opinion  by,  660. 
Bridges,  303,  304. 
Brougham,  Lord,  368. 
Brown,  Justice,  100. 

Bryce,  American  Commonwealth,  323,  490. 
Burke,  Edmund,  540. 

Campbell,  Justice,  488,  490,  491. 

Capture,  Right  of,  343. 

Carson,  The  Supreme  Court  of  the  United  States,  351,  616. 

Catron,  Justice,  55,  219,  275,  350,  48S,  489,  490,  491. 

Census,  Power  to  take,  142. 

Charges,  Regulation  of,  291,  293,  294. 

Chase,  Chief  Justice,  254,  371,  394,  500,  510. 

Cited,  65,  167,  660. 

Opinions  by,  46,  57,  119,  552,  570,  654. 
Chase,  Justice,  Opinions  by,  26,  372. 
Cherokee  Nation,  585. 
Chicago,  300. 
Chicago  River,  302. 
Chinese  cases,  595. 
Citizens  of  United  States,  473,  475,  478,  489,  502.    ' 

Privileges  and  immunities  of,  54,  477,  497,  504,  507,  508,  509,  529. 

Distinguished  from  citizens  of  the  States,  474,  503. 
See  Negro. 
Civil  rights,  467,  472,  479,  518,  526. 
Clarendon,  Lord.  375  n.,  388. 
Cleveland,  President,  638. 
Clifford,  Justice,  85,  254,  350,  518,  582. 

Cited,  89. 

Opinion  by,  71. 
Coasting  trade,  187. 
Coke,  Sir  Edward,  497,  536. 

Commerce,  46,  47,  52,  173,  175,  179,  185,  191,  193,  200,  201,  210,  215,  223, 
227,  229,  240,  241,  243,  246,  250,  253,  255,  259,  267,  270,  272, 
275,  276,  302,  312,  528,  546,  665. 

Concurrent  or  exclusive  control  of,  52,  180,  210,  242,  244,  245,  252, 
261,  270,  271. 

Control  of  Congress  over,  179,  188,  205,  210,  213,  220,  232,  240,  244, 
245,  255,  261,  266,  298,  303. 

Control  of  States  over,  215,  232,  254,  270,  275,  278,  280,  304. 

Foreign  commerce,  178. 

Includes  intercourse,  255,  261. 
navigation,  175.  177,  188,  234. 

passenger  traffic,  189,  219,  222,  225,  232,  252,  254,  260. 
transportation,  249,  250,  252-254,  260,  273,  660. 

Regulation  of  charges  not  an  interference  with,  267,  293. 


INDEX.  G71 

Commerce,  continued. 

Internal  commerce,  47,  205,  221,  251.  254,  261,  270,  278,  298. 

Interstate  commerce,  178,  186,  249,  252,  253,  260,  261,  265,  269,  271, 
285,  286,  660,  661,  664,  666. 
Common  law,  297,  538. 
Confederate  States  of  America,  146. 
Conflict  of  laws,  444. 
Congress,  Powers,  of,  162,  309,  344,  406,  527,  577,  600. 

Limitations  on,  168,  325. 
Connecticut,  Constitution  of,  379,  542. 
Constitution  of  United  States,  139,  538,  598,  611,  624. 

Adoption  of,  309. 

Objections  to,  39,  362. 

Source  of,  309,  616. 

Supremacy  of,  34,  37,  205,  310,  620. 
Constitutionality  of  legislation,  20,  21,  27,  120,  123,  126,  379,  397,  465, 
481,  519. 

Effect  of  invalidity  of  part  of  statute,  98. 

Presumption  in  favor  of  validity,  137,  193,  289. 
See  Judicial  Power. 
Construction  of  Constitution,  138,  148,  149,  161,  163,  174,  175,  194,  217, 
244,  282,  312,  320,  540,  617,  626,  636. 

Loose  construction,  174. 

Strict  construction,  174,  318. 

of  legislative  grants,  457,  460. 

of  statutes,  120,  138,  175,  341,  357,  458. 
Contract,  Impairment  of  obligation  of,  121,  133,  150,  152,  153,  164,  376, 
395,  401-403,  405,  406,  414,  423,  424,  428,  429,  432,  433,  435, 
436,  440,  454,  522. 

Is  a  charter  a  contract,  414,  416,  423,  424,  461,  464, 
Convention  of  1787,  86,  164,  408,  411,  570,  588. 

Cooley,  Thomas  M.,  Constitutional  History  as  Seen  in  American  LavC, 
615. 

Constitutional  Limitations,  83  n.,  84  n.,  267,  537. 

On  Taxation,  90. 
Corporations,  419. 

of  one  State  may  do  business  in  another,  258. 

Liability  of  foreign  corporations,  263. 

Power  of  Congress  to  create,  314,  320,  322. 

Power  of  States  to  tax,  264. 
Coulter,  J.,  cited,  84. 

Coxe,  Judicial  Power  and  Unconstitutional  Legislation,  24. 
Crime,  Punishment  of,  141,  148,  317. 
Currency,  Power  of  Congress  to  provide,  62,  167. 
Curtis,  Justice,  488,  489,  491. 

Cited,  537. 

Opinion  by,  235. 
Cushing,  Caleb,  478. 
Cushing,  Justice,  32,  381. 

Opinion  by,  607. 


672  INDEX. 

Dana,  R.  H..  Jr.,  350. 

Daniel,  Justice,  219,  246,  487,  489,  491. 

Cited,  575. 
Dartmouth  College,  413,  416,  422. 
Dartmouth,  Earl  of,  416,  417. 
Davis,  Justice,  63,  135,  254,  394, 

Opinion  by,  351. 
Declaration  of  Independence,  476,  480. 
Delaware,  Constitution  of,  375,  378. 
Demosthenes,  604. 
Denio,  J.,  cited,  536. 
Dillon,  Municipal  Corporations,  83  n. 
Domicil,  601. 
Dorr's  Rebellion,  647. 

Due  process  of  law,  80,  498,  535,  537,  540,  541,  542. 
Dunbar,  William  H.,  Article  by,  667. 
Dunmore,  Governor,  369. 
Duvall,  Justice,  431,  434,  450. 

Eleemosynary  institutions,  416,  419,  420,  422,  425. 

Elevator  charges,  289,  295. 

Elizabeth,  603. 

Ellsworth,  Chief  Justice,  26  n. 

Emancipation  Proclamation,  499,  557. 

Embargo,  153,  176. 

Enemies'  property,  348,  350. 

Error,  Writ  of,  625,  633. 

Executive  power,  324,  332,  335,  345,  579,  655,  659. 

Enforcement  of  by  judicial  process,  659. 
Exports,  200. 
Ex  post  facto  laws,  372,  375,  376,  379,  383,  389,  391,  403,  440. 

See  Retrospective  Laws. 
Expurgatory  oath,  390,  391,  393. 

Federalist,  The,   24,  38,  44,  87,  93,  243,  271,  377,  616. 

Federal  Government  and  the  States,  65,  66,  182,  184,  203,  243,  322,  J<i'9, 

553,  564,  568,  571,  575,  578,  635. 
Fenwick,  Sir  John,  375  n. 
Ferris,  260,  267,  292. 
Field,  Justice,  160,  171,  259,  273,  299,  510,  518,  582,  602. 

Cited,  276,  596,  601. 

Opinions  by,  260,  299,  324,  381,  564. 
Fish,  Secretary  of  State,  598. 
Florida,  Acquisition  of,  583. 
Foreign  Affairs,  583. 

See  International  Relations. 
Forests  of  United  States,  Protection  of,  333. 
France,  383,  386,  481,  529,  638. 
Freight  tax,  246,  247. 
Fuller,  Chief  Justice,  602. 

Opinions  by,  92,  270,  645. 


INDEX.  673 

Gage,  General,  369. 

Gallatin,  94. 

Georgia,  Constitution  of,  395,  396. 

Gerry,  165. 

Gladstone,  95. 

Gorham,  165. 

Government  of  the  United  States 

distinct  from  State  governments,  565,  568. 

extent  of  its  jurisdiction,  257,  660,  666. 

of  limited  powers,  21,  83,  113,  125,  310,  320,  617,  631,  660,  666. 

organization  of,  20,  125,  139,  468. 

supreme  in  its  sphere,  310,  565,  571,  572,  581,  631,  666. 
Gray,  Justice,  273,  280. 

Cited,  640. 

Opinions  by,  158,  596. 
Grier,  Justice,  55,  219,  488,  490,  491. 

Cited,  575. 

Opinions  by,  342,  561. 

Habeas  corpus.  Writ  of,  330,  352,  354,  358,  567. 

Suspension  of,  140,  357,  366,  370, 
Hale,  Lord  Chief  Justice,  292. 

Hamilton,  Alexander,  24,  87,  93,  271,  323,  377,  393,  616. 
Harbor  regulations,  212,  214,  222,  235,  238,  245,  263,  266,  270. 
Harlan,  Justice,  100,  273,  280,  534,  543. 

Cited,  278. 

Opinions  by,  281,  637. 
Henry  IV,  603. 

Holmes,  Justice  O.  W.,  cited,  157. 
Huberus,  446. 
Hunt,  Justice,  259. 
Hurd,  Slavery,  89. 
Hutchinson,  History  of  Massachusetts,  106. 

Illinois  Territory,  305. 

Implied  powers,  67,  125,  128,  140,  142,  156,  157,  161,  163,  167,  170,  SOS, 

313,  323,  330,  577. 
Imports,  194,  200,  202,  207. 

When  States  may  tax,  197,  207,  208. 
Imposts,  193,  238. 
Indians,  544,  592,  594,  657. 

Not  a  State  or  nation,  547,  586,  589. 

Power  of  Congress  over,  546,  548,  551,  586,  591. 
Indictment  by  grand  jury,  535. 
Injunction,  Government  by,  660,  667. 
Injunction,  Writ  of,  654,  656,  657,  658,  660,  666,  667. 
Inspection  laws,  181,  183,  194,  199,  213,  221,  227,  270,  274,  281,  284. 
International  relations,  445,  583,  639,  657,  658. 
Insolvency  laws.    See  Bankruptcy. 
Iredell,  Justice,  381,  615. 

Opinion  by,  29. 


g74  INDEX- 

Jackson,  Justice,  100. 
Jay,  Chief  Justice,  94,  615. 

Opinion  by,  610. 
Johnson,  Justice,  45,  101,  108,  167,  192,  405,  431.  444.  590,  627. 

Cited,  280,  537. 

Opinion  by,  444. 
Johnson,  President,  500,  558,  652,  653,  654. 
Johnston,  Alexander,  472,  490,  590. 
Judicial  power,  21,  22,  24,  331,  335,  353,  363,  375,  378,  397,  445,  566,  585, 

599,  607,  612,  618,  623,  626,  628,  632,  663,  666. 
Judiciary,  Power  of  to  pass  upon  validity  of  legislation,  21,  22,  25,  123. 
322,  598,  656. 

to  be  exercised  with  great  care,  92,  123,  155,  381,  396,  413. 

relation  of  Federal  and  State,  329,  449,  450,  564. 
Jurisdiction  of  United  States  courts,   404,  467,  472,  512,  517,  522,  544, 

553,  561,  603,  616,  618,  626,  629,  634,  635,  637,  640,  644,  657. 
Jury  trial,  361,  364,  394,  515. 
Justice,  Department  of.    See  Attorney  General. 
Justice,  Establishment  of,  132,  611. 

Kent,  Chancellor,  192. 

Commentaries,  40,  72  n.,  90,  494,  536. 
Kenyon,  Lord,  292. 
Kildare,  Earl  of,  387. 
Koszta,  Martin,  334,  602. 

Lamar,  Justice,  645. 
Lancaster,  Attainder  of  Earl  of,  368. 

Legal  tender,  105,  120,  128,  130-132,  136,  145,  146,  152,  154,  155,  167,  169, 
170,  376. 

Acts  of  1862,  1863,  1878,  119,  159,  160. 

Constitutionality  of,  125,  130,  135,  137,  144,  155,  160. 

Necessary  and  appropriate  means  of  carrying  on  war,  128,  132, 
135,  144,  146. 
Legislative  power,  373,  374,  399,  401,  403,  497,  559. 
Licenses,  46,  47,  48,  187,  188,  192,  204. 

may  confer  authority,  46,  47. 

a  form  of  taxation,  48,  263. 
Lincoln,  Attorney-General,  18,  19. 
Lincoln,  President,  499,  558. 
Liquors,  Sale  of,  208,  209,  271,  275,  278,  280. 
Livingston,  Justice,  431. 

Macaulay,  497. 

,  Mackintosh,  Sir  James,  368,  538. 
Madison,  James,  17,  18,  19,  87,  93,  165. 
Magna  Charta,  290,  535,  537,  539. 
Marcy,  Secretary  of  State,  333.  598,  602. 

Marshall,  Chief  Justice,  84,  161,  163,  267,  272,  354,  389,  432,  434,  444,  450, 
496,  549. 


INDEX.  675 

Marshall,  continued. 

Cited,  68,  92,  93,  110,  126,  138,  139,  143,  145,  146,  161,  163,  164,  166, 
171,  216,  222,  226,  228.  263,  354,  355,  356,  386,  389,  437,  439» 
459,  547,  549,  599,  639,  640,  644,  656,  660,  665. 

Opinions  by,  19,  33,  41,  101,  173,  191,  308,  395,  406,  412,  467,  561, 
583,  585,  590,  627. 

Speech  in  Virginia  Convention,  25,  615. 
Marshals  of  United  States,  Powers  of,  336. 
Martial  law,  338,  360,  363,  365,  367,  651. 
Martin  Luther,  165. 

Maryland,  Constitution  of,  375,  377.  . 

Massachusetts,  Constitution  of,  290,  375,  377. 
Matthews,  Justice,  98,  273. 

Cited,  274. 

Opinion  by,  534. 
McLean,  Justice,  101,  108,  219,  246,  466,  488,  595. 

Cited.  306. 

Opinions  by,  108,  219,  488. 
Meigs,  W.  M.,  Article  by,  24. 
Merlin,  602. 
Merrick,  J.,  535. 

Cited,  536. 
Migration  or  importation  of  persons,  183,  189,  227,  232,  233. 
Militia,  Power  of  Congress  over,  217,  338. 
Miller,  Justice,  135,  371,  394,  563. 

Cited,  516,  640. 

Lectures  on  the  Constitution,  323,  431,  510. 

Opinions  by,  50,  79,  325,  491,  543. 
Ministerial  duties,  655, 
Missouri  Compromise,  480,  483,  486,  488. 
Missouri,  Constitution  of,  381,  386,  388,  390,  392. 
Money,  Contracts  to  pay,  151,  152. 
Money,  Power  of  United  States  to  borrow,  41,  43,  166,  312. 

Power  of  United  States  to  coin,  127,  149,  150,  170. 

Paper  money  issued  by  colonies,  103,  106,  109. 
issued  by  Congress,  106,  127. 

United  States  notes,  120,  129. 
Depreciation  in  value,  121. 

See  Bills  of  Credit,  Legal  Tender. 
Monopoly,  492,  497. 
Morris,  Gouverneur,  86. 
Municipal  Corporations,  80. 

National  banking  associations,  56,  58,  166. 

Taxes  imposed  on,  58-60. 
Naturalization,  217,  477. 
Navigation,  240,  305,  306. 
"Necessary  and  proper"  defined,  126,  162,  163,  315,  319. 

laws,  139,  147,  314,  315. 
Negro,  475-478,  501,  503,  512. 

Can  he  become  a  citizen,  473,  480,  489. 


676  INDEX. 

Nelson,  Justice,  63,  219,  350,  490,  491. 

Opinions  by,  64,  484. 
Neutrality,  346. 
North  Carolina,  Constitution  of,  375,  378. 

Officer,  obligation  to  testify  as  to  his  official  acts,  18. 

right  to  his  commission,  20. 
Ordinance  of  1787,  132,  304,  486,  487. 
Original  package,  269,  272,  273,  279. 

Paper  Money.     See  Bills  of  Credit,  Legal  Tender,  Money. 

Pardoning  power,  324. 

Parliament  of  Great  Britain,  423,  539,  664. 

Paterson,  Justice,  381. 

Opinion  by,  28. 
Pennsylvania,  Constitution  of,  375. 
Phillimore,  602. 
Pilots,  240.  241,  244,  245. 

See  Harbor  Regulations. 
Pitt,  95. 
Police  power,  183,  185,  199,  214,  215,  221,  225,  229,  234,  252,  266,  267,  270. 

275,  276,  278,  281,  286,  289,  291,  303,  307,  494. 
Pomeroy,  Constitutional  Law,  90. 
Political  questions,  46,  62,  97,  107,  146,  171,  346,  548,  559,  562,  578,  596, 

597,  599,  600,  602,  637,  638,  639,  647,  650,  652,  655,  657,  658. 
Political  rights,  652. 

Post-offices  and  post  roads,  255,  318,  660,  661,  666. 
President,  654. 

Military  powers  of,  339,  340,  341,  342,  345,  357. 

Powers  and  duties  of,  332,  335,  337,  339,  345,  649,  655. 
Private  property,  not  to  be  taken  without  compensation,  133,  380. 

not  to  be  taken  without  due  process  of  law,  80,  84.  134,  289,  290. 

protection  of,  482,  483. 
Prize,  Right  of,  343. 
Property,  Right  of,  380. 

Public  interest  in  private  business,  292,  293,  294,  296. 
Public  purpose,  85. 

Rawle,  Constitution,  9Q. 
Raymond,  J.,  378. 
Rebellion,  567. 

financial  condition  at  outbreak,  57. 

financial  measures  adopted  during,  58. 
Reconstruction,  558,  559,  562,  652. 
Redfield,  Law  of  Railways,  83  n. 
Reeve,  History  of  English  Law,  536. 
Regulation  of  charges,  267,  289,  293,  295. 

Republican  government  guaranteed  to  each  State,  557,  558,  648,  651. 
Reserved  powers  of  the  States,  67,  68. 
Retrospective  laws,  377,  441,  454. 
Rhode  Island,  369. 
Rights  of  life,  liberty  and  pursuit  of  happiness,  385,  386. 


INDEX.  677 

San  Ildefonso,  Treaty  of,  638,  639. 
Secession,  554,  556. 
Sergeant,  Constitution,  90. 
Servitude,  Involuntary,  498,  500,  529 
Sharswood,  Blackstone,  90. 
Shaw,  C.  J..  98,  494. 

Cited,  535. 
Slaves  and  Slavery,  476,  482,  484,  487,  488,  498,  528,  532,  557. 

Effect  of  residence  in  free  territory,  483,  485,  488,  489. 
See  Servitude,  Involuntary. 
Slave  trade,  227. 
Smith,  Wealth  of  Nations,  29. 
South  Carolina,  Constitution  of,  375. 
Specie  payments.  Act  for  resumption  of,  159. 
Standard  of  value,  440. 
States  of  the  Union,  554,  561. 

Position  of  before  adoption  of  Constitution,  173,  383,  474,  611. 

Powers  of,  290,  309,  373,  401,  406,  407,  428,  468,  474,  506,  617. 

Restrictions  on,  168,  195,  375,  440,  469,  521,  609. 

Sovereignty  of,  65,  577,  603,  608,  621,  632. 

Suability  of,  404,  585,  603,  607,  609,  613,  615,  630,  632,  637,  643. 
Statutes  of  limitations,  411,  436,  438./-'" 
etimson,  F.  J.,  Article  by,  667. 
Story,  Justice,  118,  220,  431,  444,  450,  590. 

Cited,  138,  346,  347,  455,  466,  650. 

Commentaries  on  the  Constitution,  90,  122,  125,  141,  249,  272,  387, 
641. 

Opinions  by,  338,  616. 
Stowell,  Lord,  cited,  345. 
Strafford,  Earl  of,  375  n. 
Strong,  Justice,  299. 

Cited,  170. 

Opinions,  136,  246,  511.  * 

Suffrage,  Right  of,  478. 
Swayne,  Justice,  135,  371,  394,  510. 

Cited,  664,  665. 

Opinions  by,  85,  254,  563. 
Swift's  Digest,  542. 

Taney,  Chief  Justice,  276,  350,  489,  490. 

Cited,  51,  55,  74,  291,  356,  487,  508,  548,  559,  566,  568. 

Opinions  by,  204,  451,  472,  647. 
Taxation,  26,  st  34,  79,  80,  83,  84,  86,  147,  170,  180,  181,  192,  193,  196,  197, 
199,  203,  206,  207,  214,  221,  223,  227,  228,  229,  233,  237,  246. 
247,  250,  259,  263,  264,  269,  312,  459. 

direct,  26-28,  30,  32,  60,  8.6,  88,  89,  90,  93,  94,  99. 

duties,  27,  193,  197,  199,  221,  226. 

Federal  power  of,  38,  39,  61. 

in  aid  of  inspection  laws,  75. 

in  aid  of  private  enterprises,  81. 

indirect,  27,  29. 


678  INDEX. 

Taxation,  continued. 

must  be  for  public  purposes,  84. 

of  agencies  and  contracts  of  United  States  by  the  States,  33,  36, 
37,  40,  41,  43,  44,  54,  64,  166,  169,  322. 

of  exports  by  States,  51,  52,  195,  238,  246. 

of  incomes,  95,  97. 

of  national  banks.  58-60. 

of  passenger  traffic  by  States,  50,  51. 

of  State  agencies  by  United  States,  64,  95. 

of  State  banks,  56,  63,  167. 

of  State  franchises  by  United  States,  61. 

of  tonnage  by  States.  71-73,  76,  238. 

State  power  of,  35,  36,  39,  75,  196,  197,  224,  247,  251,  264. 
Telegraph,  256. 
Territory  of  United  States,  481,  488,  547,  584. 

Power  to  acquire,  583. 
Test  oath,  382,  384,  390. 
Texas,  Constitution  of,  656, 
Thayer,  J.  B.,  Articles  by,  24,  157. 

Cases  on  Constitutional  Law,  24,  490. 
Thompson,  Justice,  45,  101,  108,  118,  204,  444,  450,  466,  590. 
Tonnage  duties,  76,  221,  237. 
Treaty-making  power,  583. 
Trimble,  Justice,  444,  450. 

Union,  The,  555,  562,  630,  661. 

Valuation  of  real  and  personal  property  in  United  States  in  1890,  99. 
Vattel,  344,  445,  593,  602. 

Waite,  Chief  Justice,  273. 

Cited,  517. 

Opinions  by,  255,  289. 
War,  312,  338,  342,  343,  363,  566,  583,  597. 

Civil  War,  344,  349,  557. 
Washington,  Justice,  431,  450,  595. 

Cited,  454,  505. 

Opinion  by,  432. 
Wayne,  Justice,  55,  246,  371,  487,  489,  490,  491. 

Opinion  by,  231. 
Webster,  Noah,  355,  541. 
Weights  and  measures,  154. 
Wharton,  Digest  of  International  Law,  598,  602. 
White,  Justice,  100. 
Wilson,  Justice,  32,  615. 

Opinion  by,  603. 

Speech  in  Pennsylvania  Convention,  25. 

Works,  157,  323. 
Wirt,  William,  478. 
Woodbury,  Justice,  219. 
Wooddeson,  377. 


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